2007 judgments

2007 Judgments
Jersey Employment Tribunal
Case Number: 3108134/06 (Rosa) & 3108135/06 (Maria)
Applicant: Maria Rosario Gouveia („Rosa Gouveia‟) –
Maria Rosa Gouveia („Maria Gouveia‟)
Respondent: KPG Investments Limited t/a St Peter Country Apartments.
Case Summary: Claim for hours worked in absence of contract of employment
stating hourly rate of pay.
Hearing on 15th January 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman
Mr S Mourant and Mr A Hall, Panel Members
Representation:
For Applicants: Miss Rosa Gouveia
(Miss Maria Gouveia absent from hearing)
For Respondent: Mr E Gibb, Director
Witnesses: None
The Facts:
Miss Maria Gouveia and Miss Rosa Gouveia responded to an advertisement for cleaners in the
Jersey Evening Post, and reported to St Peter Country Apartments for work at 9.00am on 19th
August 2006. The work consisted of cleaning occupied self catering units and freshening up
unoccupied units on a Saturday, which is changeover day, between 9.30am (the guests‟
checkout time) and 3.00pm (the guests‟ check in time). It is anticipated by the employer that
each occupied unit will take 1-2 hours to clean. On finishing a unit an employee was required
to inform Mrs Mooney the housekeeper, who would issue them with keys for the next unit
and check the work just done by the employee to ensure that it was up to the employer‟s
standards. A new employee would be expected to work with an experienced employee when
just starting. In this case the Misses Gouveia insisted on working together so an existing
employee was not assigned to them. By the time the system of work had been explained to the
sisters, it was 10 o‟clock and the employer told the ladies to start work on number 14. When
the sisters had finished number 14 they informed Mrs Mooney who issued them with keys to
numbers 3 and 24, which Miss Rosa Gouveia said each sister cleaned independently. The
Tribunal was informed that on checking number 14 Mrs Mooney found it was not up to an
acceptable standard and informed Mr Gibb. A decision was made to let the Misses Gouveia go
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immediately as their work was not good enough. Mr Gibb informed the Tribunal under oath
that each of the houses cleaned or claimed to have been cleaned by the sisters had to be
cleaned again by other staff. Miss Rosa Gouveia informed the Tribunal under oath that she
was not told to go home by Mrs Mooney but that she and her sister did leave promptly at
1.00pm. The following Saturday at 9.00am the applicants reported for work at St Peter‟s
Country Apartments and to collect their previous week‟s wages and were told not to work.
Miss Rosa Gouveia went back at 3.00pm to collect her wages and those of her sister from Mr
Gibb who informed her that he was paying the sum of £11.50 to each sister which represented
2 hours work at £5.50 per hour (with an extra 50 pence added in) as that is what he considered
the sisters work to be worth for the two hours they worked. The Misses Gouveia dispute this
position and are claiming for 4 hours work (9am – 1.00pm) at £8.50 per hour.
Decision
Chairman‟s Note: The employees in this case were contracted to work 8 hours or less a week
and accordingly are not required to be issued with a written statement of their terms of
employment – article 6 of the Employment (Jersey) Law 2003.
1. Mr Gibb maintained that the rate of pay was £17 per unit cleaned. Miss Rosa Gouveia
maintained that the rate of pay was £8.50 per hour in accordance with the advert in the Jersey
Evening Post („the Advert‟) and what was said to her by an un-named employee of the
Respondent when she started work. Neither party had a copy of the Advert. The Tribunal has
obtained a copy of the Advert which is annexed to this decision. It clearly states that the rate of
pay is £8.50 per hour. Mr Gibb did not bring any witnesses to the Tribunal to dispute Miss
Rosa Gouveia‟s evidence and accordingly the Tribunal finds the agreed rate of pay was £8.50
per hour.
2. Further the Tribunal heard no evidence from either party that the rate of pay was subject to
a reduction during a probationary period or for unsatisfactory work. Accordingly the Tribunal
finds that Mr Gibb was not entitled to reduce the hourly rate to £5.50 per hour.
3. The hours worked by the Misses Gouveia is disputed by the parties. The Tribunal has
considered the evidence it has heard and come to the following conclusion. The Tribunal
believes Miss Rosa Gouveia‟s evidence that she and her sister reported for work at 9.00am.
The Tribunal finds that the sisters were available to work from 9.00am., as detailed in the
Advert. The Tribunal accepts that time was taken to explain the work, equipment and system
of work at the site and that there was some discussion regarding the separation of the sisters.
The Tribunal agrees that the applicants probably started cleaning about 10am. However it is
not acceptable for such settling in time to be unpaid unless it is clearly agreed by the parties in
advance or is common practice in a particular job. In this case there was no such agreement
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and the Tribunal were not informed of any such practice. Accordingly such time must be
included in the calculation of hours worked by the sisters.
4. The Tribunal finds the applicant‟s were available to work from 9.00am. This is when the
hourly rate started to accrue.
5. The time that the applicants finished work is more difficult to assess. No evidence was
heard or presented in writing from Mrs Mooney who is a key witness in this case. The
Employer should have anticipated the need for this evidence and the Tribunal has warned in
the past of the need for parties to take seriously the presentation of information to the
Tribunal. If a party cannot attend a hearing a written statement of evidence which would have
been presented is acceptable. On the basis of the evidence heard the Tribunal finds as follows
regarding the Gouveia sisters‟ finishing time.
6. It is accepted by both parties that the sisters cleaned number 14 together and that it takes
about 2 hours to clean a unit. Rosa Gouveia said that on informing Mrs Mooney of completion
of number 14 they were given the keys of numbers 3 and 24 which each sister cleaned
separately. This must have taken place about 12 noon. Mr Gibb gave evidence that he and Mrs
Mooney met at about 12.30pm following Mrs Mooney‟s inspection of number 14, where it was
decided that the sisters‟ work was not up to the standard required and that they must stop
work and leave. Mr Gibb left it to Mrs Mooney to tell the Gouveia sisters of this decision.
Miss Rosa Gouveia gave evidence that she and her sister left promptly at 1.00pm. She said that
Mrs Mooney did not speak to either of them. However the sisters did report for work at 9.00am
the following Saturday, 26th August, when they were told they were not required. On the basis
that they would not have reported so early if they did not expect to work, the Tribunal
concludes that Mrs Mooney did not have a chance to speak to either Gouveia sister before they
left on the 19th August 2006. Furthermore on being told by Mr Gibb that her work was not up
to scratch, Rosa Gouveia, on Mr Gibb‟s evidence, lost her temper and acted in an abusive
manner. If Miss Gouveia had been informed of this information the Saturday before by Mrs
Mooney, the Tribunal would have expected such an outburst at that time, not a week later.
Accordingly in the absence of evidence to the contrary, the Tribunal finds that on the balance
of probabilities, the Applicants worked to 1.00pm on the 19th August 2006.
7. The Tribunal concludes that the hours worked by Miss Maria Gouveia and Miss Rosa
Gouveia on the 19th August 2006 were 9.00am to 1.00pm, which is 4 hours each.
AWARD
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In accordance with Article 86 of the Employment (Jersey) Law 2003, the Tribunal hereby finds
that each of the Applicants is due the following amount of wages from the Respondent in
respect of work done for the Respondent on the 19th August 2006.
1. Miss Maria Gouveia:
4 hours @ £8.50 per hour = £34.00
2. Miss Rosa Gouveia:
4 hours @ £8.50 per hour = £34.00
ANNEX
Jersey Evening Post Advertisement – 8 August 2006 – Page 42
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Jersey Employment Tribunal
Case Number: 0409-137/06
Applicant: Miss Kelly Ormroyde
Respondent: Mr. Kenneth Patrick t/a P + G Gardening
Case Summary: Identification of employee status; holiday pay due.
Hearing on 22 January 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Mr. S Mourant and Mr. A Hall – Panel Members
Representation:
For Applicant: Miss Ormroyde represented herself
For Respondent: Mr. Patrick did not attend the hearing
Witnesses:
For Applicant: None
For Respondent: None
The Facts
Miss Ormroyde was employed as a gardener by Foxgloves Gardens from 25 April 2004. In
December 2005 Mr Stephen Fox the owner sold the business of Foxgloves Gardens to P & G
Gardening. Mr Patrick the principal of P & G Gardening took on the services of Miss
Ormroyde as a gardener from that date and increased her rate of pay from £6.50 per hour to
£8.00 per hour. Miss Ormroyde would show Mr Patrick the gardens he bought from Mr Fox‟s
business and describe the work to be done in each and the regularity of the visits. Mr Patrick
had 2 or 3 other employees in his business apart from Miss Ormroyde. Mr Patrick generally
worked with the employees in the gardens they were servicing. Miss Ormroyde left the
business of P & G Gardening when she realised, on receipt of a letter from the Department of
Social Security, that Mr Patrick had not been deducting and paying social security out of her
wages as she had been lead to believe. Miss Ormroyde did not receive a wage slip or a written
statement of the terms of her employment with P & G Gardening. Miss Ormroyde also had not
received the holiday pay due to her. Mr Patrick asserted in his Form JET 2 that Miss Ormroyde
was self employed.
Note: Mr Patrick did not attend the Tribunal hearing despite being informed of the hearing
date by letter dated 11 December 2006. Miss Ormroyde gave evidence to the Tribunal having
affirmed it to be the truth. Miss Ormroyde‟s testimony and the contents of Form JET 2,
presumably completed by Mr Patrick, were the only evidence available to the Tribunal.
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The Decision
1. The first issue to be decided upon by the Tribunal is whether Miss Ormroyde was
employed by Mr Patrick or self employed as asserted by Mr Patrick in his Form JET 2.
2. Miss Ormroyde gave evidence that she was employed by Mr Fox at Foxgloves Gardens (and
produced a Contract of Employment confirming that status). She stated that when the business
was sold to Mr Patrick nothing changed in the manner in which she worked. The Tribunal
were informed by Miss Ormroyde that:-
 Mr Patrick kept a note of the hours she worked, for which she received a weekly wage
 Mr Patrick provided all the equipment needed for Miss Ormroyde to do her work
 Mr Patrick was training Miss Ormroyde as a gardener
 Mr Patrick would direct Miss Ormroyde as to what to do; she had no discretion
 Mr Patrick set her hours of work as 7.30am to 5.30pm, Monday to Friday and 4 – 5
hours on a Saturday
 The clients who received gardening services were definitely Mr Patrick‟s -he did all
the invoicing and paperwork – Miss Ormroyde had no involvement with this side of
the business, and
 Miss Ormroyde had to ask permission to take a holiday.
3. On hearing this evidence the Tribunal finds that Miss Ormroyde received a wage in
consideration of the provisions of gardening services to Mr Patrick‟s clients and that in
performance of those gardening services, Miss Ormroyde remained subject to the control of
Mr Patrick throughout her working day. The Tribunal hereby concludes that Miss Ormroyde
was an employee of Mr Patrick.
4. Miss Ormroyde gave evidence that whilst in the employ of Mr Fox she received 3 weeks
paid holiday a year. Her contract of employment with Foxgloves Gardens bears this fact out.
Miss Ormroyde gave evidence that Mr Patrick, on buying the business of Foxglove Gardens
and taking over her employment, had said that he would honour this arrangement.
5. Miss Ormroyde gave evidence that she took a week‟s holiday in December 2005 for which
Mr Fox paid her. Given that this was after the date of sale of the business to Mr Patrick, the
Tribunal finds this arrangement surprising but no evidence was heard to dispute it.
6. Miss Ormroyde took a week‟s holiday in March 2006, for which she was not paid. Mr
Patrick says in his Form JET 2 that he paid her £370.00 and then £240.00 before she went on
holiday as a holiday payment. Miss Ormroyde says that this payment was a week‟s wage for
the week before she went away and payment for the Monday, Tuesday and Wednesday that
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she worked in the week that she went away. She asked Mr Patrick to hold her previous week‟s
wages until she went on holiday to stop her spending them. Miss Ormroyde gave evidence
that when she returned from holiday she was not paid any money. The Tribunal believes her.
7. Miss Ormroyde took 2 weeks holiday in August 2006 and gave evidence that she was not
paid for this holiday either. The Tribunal believes her.
8. Miss Ormroyde gave evidence that she was required to work on these bank holidays during
2006:
 Good Friday
 Easter Monday
 May Day Holiday
 Liberation Day
 Late Spring Bank Holiday,
And that she did not receive extra pay for such days worked or a day off in lieu of the time she
worked.
9. The Tribunal concludes on the evidence heard and the information contained in Form JET 2
that Mr Patrick did agree to honour Miss Ormroyde‟s holiday entitlement from Foxgloves
Gardens of 3 week‟s paid leave a year. As an employee Miss Ormroyde is entitled to receive a
minimum of 2 week‟s paid leave a year (article 11 of the Employment (Jersey) Law 2003 („the
Law‟) The Tribunal also finds in the absence of evidence to the contrary, Miss Ormroyde
worked on the bank holidays described in paragraph 8 above during 2006. In accordance with
article 11 of the Law, an employee is entitled to a day‟s pay or a paid day off in lieu of any
bank holiday worked, and this money remains outstanding to Miss Ormroyde.
10. Miss Ormroyde worked 5½ days a week. Therefore 3 weeks holiday to her is 16½ days a
year. Miss Ormroyde worked from 1st January 2006 to 25th August 2006. This is 34 weeks out of
the 52 in a year, which when expressed as a percentage means that Miss Ormroyde was due 11
days paid holiday for the period she worked for Mr Patrick in 2006.
11. Miss Ormroyde gave evidence that she worked a 10 hour day. The Tribunal will deduct 1
hour a day for lunch and other breaks, leaving 9 hours paid work a day.
12. The calculation of the sum due to Miss Ormroyde in respect of her holiday pay is as
follows:
9 hours a day x £8.00 per hour x 11 days = £792.00
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9 hours a day x £8.00 per hour x 5 bank holidays = £360.00
Total: £1,152.00
13. Miss Ormroyde gave evidence that she left the employment of P & G Gardening, when she
realised that her social security contributions were not being paid on her behalf. Miss
Ormroyde did not receive a wage slip and she said, had no reason to believe that such
deductions were not being made. Miss Ormroyde‟s belief was based on the fact that she
received less in cash than she earned. For example for working a 50 hour week she would
expect to receive £400.00 (based on a rate of £8.00 per hour) but instead would receive £370.00.
Having received a letter from the Department of Social Security and on checking with them,
(copy schedules were shown to the Tribunal) it became clear that no payment of social security
had been made for Miss Ormroyde since November 2005, the last payment made by Mr Fox.
Mr Patrick had also failed to make any returns for ITIS to the Income Tax Department, in
respect of Miss Ormroyde‟s wages.
14. The Tribunal heard evidence from Miss Ormroyde that she had not received a wage slip
whilst working for Mr Patrick. This is contrary to article 51 of the Law which gives each
employee the right to receive a written itemised pay statement. A breach of article 51 of the
Law is an offence punishable by a fine not exceeding £5,000. In accordance with article 55 of
the Law the Tribunal hereby fines Mr Patrick the sum of £150.00 in respect of this offence.
15. The Tribunal also heard evidence that Miss Ormroyde had not received a written statement
of the terms of her employment with Mr Patrick. This is contrary to article 3 of the Law and is
an offence punishable by a fine not exceeding £5,000. In accordance with article 9 of the Law
the Tribunal hereby fines Mr Patrick the sum of £150.00 in respect of this offence.
Summary of Awards & Fines
AWARDS
1. Sum awarded in respect of holiday pay due in accordance with article
86 of the Law £792.00
2. Sum awarded in respect of pay due in respect of bank holiday and
public holidays worked in accordance with article 11 of the Law
£360.00
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TOTAL £1,152.00
FINES
1. Sum fined in respect of a failure to provide a wage slip in accordance £150.00
with article 51 of the Law
2. Sum fined in respect of a failure to provide a written statement of terms £150.00
of employment, in accordance with article 3 of the Law
TOTAL £300.00
Tribunal Note: The amount of the fines imposed in this case reflects the sums being imposed
by the Tribunal for such offences under the Law in August 2006. It should not be used as an
indicator of the fines which will be imposed by the Tribunal for offences under the Law in
2007.
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Jersey Employment Tribunal
TRIBUNAL ORDER
Case Number: 1511207 / 06
Applicant: Miss Belinda Bottino
Respondent: Blacks Leisure Group plc t/a Millets
ORDER DATED: 1st February 2007
Before: Mr N Santos-Costa, Deputy Chairman
1. The Applicant was employed by the Respondent as a sales assistant for a continuous period
in excess of 4 weeks during 2006 and has complained to the Tribunal that during this time she
was not provided with a written statement of the terms of her employment in accordance with
Article 3 of the Employment (Jersey) Law 2003, („the Law‟).
2. Article 3 of the Law states that a written statement of terms of employment must be given to
an employee not later than 4 weeks after that employee begins employment.
3. The Respondent had admitted in a letter dated 26th January 2007 that due to an
administrative oversight the Applicant was not provided with a written statement of terms in
accordance with Article 3 of the Law.
4. Article 9 of the Law states that an employer who fails to give an employee a written
statement of the terms of his employment in accordance with Article 3 shall be guilty of an
offence and liable to a fine not exceeding level 4 on the standard scale of fines as set out in the
Criminal Justice (Standard Scale of Fines) (Jersey) Law 1993. Such scale provides that a level 4
fine is in the maximum amount of £5,000.
5. The Tribunal finds that the Respondent was in breach of its duty to the Applicant to
provide a written statement of the terms of her employment within 4 weeks of the
commencement of her employment and HEREBY FINES the Respondent the sum of £150.00
pursuant to its powers under Article 9 of the Law.
6. The Respondent is HEREBY ORDERED to pay such fine to the Social Security Department
without delay.
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Jersey Employment Tribunal
Case Number: 1809-147 / 06
Applicant: Mr Alan Andrew Lally
Respondent: AJBC Limited t/a Proline
Case Summary: Meaning of dismissal, breach of contract (sick pay), payment of
commission.
Hearing on 5th February 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman
Mrs M Curtis and Mr A Hall – Panel Members
Representation:
For Applicant: Mr Alan Lally represented himself
For Respondent: Mr Christopher Brien, Director
Mrs Jackie Brien, Company Secretary
Witnesses: None
The Facts
Mr Lally was employed as a delivery driver and salesman for Proline, a company which sells
products and equipment for the motor trade. On the 10th July 2006 Mr Lally gave one month‟s
notice to Proline of his intention to resign his position, as he intended to move to England. Mr
Brien expressed his regret at Mr Lally‟s decision as Mr Lally seemed happy in his work and
was a good salesman. On 31st July 2006, Mr Lally‟s replacement started work for Proline and
Mr Lally spent the day showing him the round of customers and explaining the job. Mr Lally
was paid his salary for July and the commission he earned in June, on the 31st July 2006.
On the 1st August 2006, Mr Lally‟s replacement reported for work on time but told Mr Brien
that, on reflection, the job was not for him and he did not wish to continue. Mr Brien accepted
this decision and waited for Mr Lally to come into work in order to explain the position to
him. Mr Lally did not report to work that day and Mr Brien telephoned Mr Lally twice and left
messages asking where he was. On the 2nd August 2006 Mr Brien did manage to speak to Mr
Lally and asked him to come back to work and work out his notice. Mr Lally said they did not
need him as they now had a replacement. Mr Brien explained the situation and said that
without Mr Lally, he would have to go out in the van himself and he was very busy. Mr Brien
said that Mr Lally said that, “he‟d think about it.” Mr Lally denied saying this. However it was
agreed that at the end of this conversation Mr Lally said that he had a sore throat and was
going to the doctors. Mr Brien asked Mr Lally to let him know the situation as he needed
certainty in his business. Mr Brien heard nothing from Mr Lally until the afternoon of 3rd
August 2006, when he again contacted Mr Brien who said that he was signed off for 2 weeks
with a chest infection.
A copy of Mr Lally‟s sick note was presented to the Tribunal. It is dated 2nd August 2006 and
was issued in respect of a chest infection. The sick note is back dated to 31st July 2006 and
expires on the 9th August 2006. It states that Mr Lally was expected to return to work on the 10th
August 2006 the day after his notice expired. Accordingly the sick note was for 10 days not 2
weeks. Also the Tribunal heard that Mr Lally worked on the 31st July 2006 without complaint.
On Saturday 5th August 2006 Mr & Mrs Brien saw Mr Lally in town. Mr Lally said that Mr
Brien told him not to return to work as they had found someone else and his services were no
longer required, and how disappointed they were. Mr Brien said that he said that he did not
„expect Mr Lally to work again‟ as they had employed someone else and everything was
alright now and they believed that Mr Lally‟s sick note expired after his termination date. Mrs
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Brien gave evidence that she asked Mr Lally for his sick note as they had not received it. Mr
Lally denies that Mrs Brien said this to him.
Mr Lally gave evidence that he submitted the original sick note from his doctor directly to the
Social Security Department (which is permitted) and took two copies – one he forwarded to
Mr Brien and the other he kept for himself.
Mr Lally is claiming that he was unfairly dismissed when Mr Brien told him not to return to
work, and furthermore that he was not paid his wages during the remaining period of his
notice whilst he was sick. Mr Lally is also claiming that he is owed commission on sales he
made during the month of July 2006.
Decision
Unfair Dismissal
1. In order for an employee to bring a claim for unfair dismissal, he must be dismissed by his
employer. Article 62 (1) of the Employment (Jersey) Law 2003 („the Law‟) states that an
employee is dismissed by his employer if (and, subject to paragraph (2), [which does not
apply here] and only if) –
(a) the contract under which he is employed is terminated by the employer (whether with or
without notice);
(b) he has been employed under a fixed term contract of employment, or a series of fixed term
contracts, for less than such continuous period of time as may be prescribed (25 years R&0
34/2005), and the term of the subsisting fixed term contract expires without being renewed under
the same contract; or
(c) the employee terminates the contract under which he is employed (with or without notice)
in circumstances in which he is entitled to terminate it without notice by reason of the
employer‟s conduct.
2. In Mr Lally‟s case he had already resigned his position with Proline and was serving a
period of one month‟s notice. Mr Lally gave evidence that on the 2nd August 2006 he informed
Mr Brien that he had been signed off by the doctor for 2 weeks which would take him to the
16th August 2006. Mr & Mrs Brien gave evidence that they did not receive a copy of Mr Lally‟s
sick note. Mr Lally stated that he had sent them a copy. For the reasons set out in paragraph 10
below, the Tribunal believes that Mr & Mrs Brien did not receive a copy.
3. In any event at no time did Mr Lally inform Mr Brien that he was in fact signed off sick
from 31st July 2006 for 10 days, not 14 days, and when Mr & Mrs Brien met Mr Lally in the
street on the 5th August 2006, they were under the impression that Mr Lally was off sick until
the 16th August 2006. Mr Brien gave evidence that he did not think he would see Mr Lally
again because his notice period expired during his sick leave. The Tribunal can understand his
point of view. Accordingly whether Mr Brien said he did not „expect him to work again‟, or
told him „not to come into work again‟ is irrelevant. Mr Brien cannot have dismissed him
because the date that Mr Lally could have come back to work was later than the date of expiry
of his notice to Proline.
4. The Tribunal finds that the claim of unfair dismissal is struck out.
Loss of Pay during Mr Lally‟s sick leave.
5. Mr Lally‟s contract of employment states under „Sickness‟ that –
“If you are ill or unable to get into work, Chris should be notified before 9am of that day.
There is no sick pay without evidence of a Doctor‟s Certificate. Wages will be „made up‟ to
£300 basic, after proof of social security allowance.”
Mr Lally signed this contract on 17th December 2005 („the Contract‟).
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6. The Tribunal heard evidence that Mr Lally did not go into work on the 1st August 2006 and
he did not report in sick as required by the Contract.
7. The Tribunal heard evidence that Mr Lally told Mr Brien about his sore throat on the
afternoon of the 2nd August 2006 when Mr Brien contacted him.
8. The Tribunal heard evidence that Mr Lally told Mr Brien that he was signed off work for 2
weeks on the 3rd August 2006, again on Mr Brien contacting him.
9. The Tribunal heard evidence from Mr Lally that he sent a copy of his sick note to Mrs Brien
on 2nd August 2006. Mrs Brien denied receiving this document under oath and gave evidence
that she asked Mr Lally for it when she met him in the street on 5th August 2006.
10. The Tribunal is mindful of the contents of Form JET 2 completed by the Respondent which
states they had not seen a copy of the sick note until they received Mr Lally‟s JET 1 Form. In
addition the Tribunal had sight of a letter from David Witherington, director of JACS dated
27th October 2006 addressed to Mr Lally ( and which Mr Lally had received), in which Mr
Witherington makes repeated reference to the fact that Mr & Mrs Brien had not received a
copy of the sick note. Mr Lally said that he did not send a further copy of his sick note to Mrs
Brien following receipt of that letter because he was advised by JACS not to do so. The
Tribunal finds this advice hard to believe and suggests that Mr Lally must have
misunderstood. Mr & Mrs Brien said in evidence that at that time they were willing to pay his
wages during his sick leave on receipt of a sick note but not now; having had to prepare and
present their case to the Tribunal, they were disinclined to do so.
11. The Tribunal on balance believes the evidence of Mr & Mrs Brien that no sick note was
presented to them.
12. The Tribunal finds that Mr Lally breached the terms of his Contract by;
(a) not informing Mr Brien that he was ill as required by the Contract, and
(b) not presenting a sick note to the employer as required by the Contract in order to receive
full pay during the period of his sick leave.
13. The Tribunal finds that Mr Lally‟s breach of the terms of his Contract means that no sum is
payable to him for the period of his sick leave up to the date of expiry of his notice, the 9th
August 2006.
Payment of Commission Due.
14. The Contract provides in the paragraph dealing with „Wages‟ as follows:
“…Commission is 10% after the first £5,200.00 of sales per month. Any credit notes issued will be
deducted from the sales figures in the month the credit note is issued. Commission is payable on
the last day of the following month”.
15. Mr Lally maintained, from notes he kept in his diary, that during the month of July 2006 he
sold £6,410.84 of goods. This is £1,210.84 over the threshold for commission at 10% to be
payable and accordingly the sum of £121.08 in commission is due to him for July 2006.
16. Mrs Brien gave evidence that Mr Lally‟s sales as recorded by her for the month of July 2006
were £5348.92, less a refund of goods of £208.76 to a customer, leaving a total sales figure of
£5140.16 for the month. This sum is below the £5,200 threshold and accordingly no commission
is due to Mr Lally.
17. On the Deputy Chairman‟s direction, the Tribunal were provided with copies of Mr Lally‟s
diary entries recording his daily total sales figures for the time he worked for Proline. The
Tribunal also received a spread sheet provided by Proline showing individual daily inputted
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sales figures for the period 10th July 2006 to 31st July 2006. The Tribunal met after the
conclusion of the hearing to reconcile the two sets of figures in order to identify the amount of
commission payable to Mr Lally.
18. The Tribunal found that the Proline spreadsheet does not include invoice numbers,
customer details or individual order number. Accordingly it was very difficult to identify
daily sales and compare the Proline figures against Mr Lally‟s information contained in the
diary. Proline said that it was not possible to obtain more information on this matter. The
Tribunal found that there was often no direct link between the total sales recorded in Mr
Lally‟s diary and the individual sales inputted by Proline; some appeared a day late and others
simply could not be reconciled.
19. It is the responsibility of Proline to provide sufficient information to enable a full
reconciliation to take place where the figures are in dispute. The Tribunal gave the respondent
4 days to provide this information and it indicated to the Tribunal Secretary that no further
information other than contained in the Proline spreadsheet, would be made available to the
Tribunal.
20. The Tribunal have taken a pragmatic view of the situation. The Proline spreadsheet shows
that £208.76 was deducted by them in the month of July 2006, as confirmed in evidence by Mr
& Mrs Brien and indicated in a letter from the customer in question, which was copied to the
Tribunal.
21. Mr Lally claims he made sales of £6,410.84 in July 2006 as supported by his diary entries.
Proline say that Mr Lally made sales of £5,348.92 less the deductions referred to in paragraph
20 of £208.76, leaving £5,140.16. As explained in paragraph 18 above, the Tribunal cannot
reconcile the parties‟ sales figures for July 2006. Accordingly the Tribunal has decided to
deduct the sum of £208.76 (which was not disputed) from Mr Lally‟s total sales figures for July
2006: £6,410.84 less £208.76 = £6,202.08.
22, The Tribunal will treat the sum of £6,202.08 as the amount in sales earned by Mr Lally in
July 2006. When the commission threshold of £5,200 is deducted from this amount, a sum of
£1,002.08 is left on which commission at 10% is payable. Accordingly the Tribunal AWARDS
to Mr Lally the sum of £100.21 in unpaid commission for the month of July 2006 in accordance
with the terms of his Contract.
Tribunal Note: The Tribunal would like to point out Regulation 3 in the Employment
Tribunal Regulations 2005 which states that an Interim Hearing may be held at any time after
a complaint has been received for the purpose of dealing with „any interim issue such as
striking out or dismissing any part of a claim‟. The Tribunal does not charge or award costs in
respect of an interim hearing or any part of its procedures. The Tribunal notes that Mr & Mrs
Brien have been greatly inconvenienced by the claim brought against them by their former
employee and would urge the use of interim hearings for a decision in cases where it is
believed that the applicant‟s chances of success at a full Tribunal hearing, are questionable.
Such hearings can be arranged by either party directly with the Tribunal Secretary at any point
before the main hearing takes place.
14
Jersey Employment Tribunal
Case Number: 1809-148/06
Applicant: Mr Lindsay Merrony
Respondent: Department for Education, Sport & Culture
Case Summary: Unfair dismissal
Hearing on 15th February 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman
Mrs S Armes, Panel Member
Mr W McPhee, Panel Member
Representation:
For Applicant: Mr Merrony represented himself
For Respondent: The Department for Education, Sport & Culture of the States of Jersey
was not represented at the hearing.
Witnesses:
For Applicant: None
For Respondent: None
The Facts:
1. Mr Merrony was employed by the States of Jersey, Department for Education, Sport &
Culture as a teacher and Head of Humanities at Grainville School, from 1st September 2004.
2. On the 27th July 2006 following a disciplinary process and appeal hearing conducted by the
Respondent, Mr Merrony was dismissed from his position as a teacher at Grainville School.
3. On the 18th September 2006 Mr Merrony filed a form JET 1 with the Jersey Employment
Tribunal complaining that he had been unfairly dismissed.
4. On the 5th October 2006, the States of Jersey, Department for Education, Sport & Culture
filed form JET 2, its response to the complaint.
5. On the 11th December 2006, Mrs Madeleine Davies, Head of Staff Services at the
Department for Education, Sport & Culture informed the Tribunal by email, „that contrary to
the JET 2 [the Respondent] no longer wishes to contest the claim made by Mr Merrony‟.
6. The Deputy Chairman of the Employment Tribunal sought clarification from Mrs Davies
that by not contesting the claim, the States of Jersey, Department for Education, Sport &
Culture was in fact admitting the claim, thus avoiding the need for a hearing.
7. Mrs Davies replied on the 6th February 2007 that, „the Department for Education, Sport &
Culture will not be contesting the above claim, nor will any representative from the
Department be attending a tribunal hearing‟.
8. The Respondent has made various attempts to settle this matter through JACS.
DECISION
9. In accordance with Article 77 of the Employment (Jersey) Law 2003, („the Law‟) the Tribunal
shall make an award of compensation in accordance with the Employment (Awards) (Jersey)
Order 2005, where it finds that a complaint of unfair dismissal is well founded.
10. The Tribunal have decided to interpret Mrs Davies‟ words that, „the Department… will not
be contesting the claim made by Mr Merrony‟, as meaning that the Respondent does not
15
intend to bring any evidence to dispute the facts set out in Form JET 1 completed by Mr
Merrony. Accordingly the Tribunal can only rely upon the information contained in the Form
JET 1 regarding Mr Merrony‟s complaint of unfair dismissal. Form JET 1 does describe
circumstances which indicate that the process of his dismissal appears to be unfair. Further, in
the particular circumstances of this case as set out in JET 1, the action of the Respondent does
appear to fall outside the band of reasonable responses open to it as an employer. Accordingly
in the absence of evidence to the contrary, the Tribunal finds that Mr Merrony‟s complaint of
unfair dismissal is not without foundation.
11. Mr Merrony was employed by the States of Jersey, Department for Education, Sport &
Culture from the 1st September 2004 to 27th July 2006, a period of 1 year and 11 months.
12. The Employment (Awards) (Jersey) Order 2005 provides that employees whose complaints
of unfair dismissal are well founded shall be awarded compensation in accordance with the
scale of compensation for unfair dismissal set out in the schedule to the Order.
13. As Mr Merrony had been employed for more than 1 year but less than 2 years he is entitled
to 8 weeks pay by way of compensation.
14. Mr Merrony earned £3648.58 per month, which is £43,782.96 per annum, or £841.98 per
week.
£841.98 x 8 weeks = £6,735.84
15. The Tribunal‟s jurisdiction is limited in accordance with the provisions of the Law and it
is not empowered to deal with issues concerning Mr Merrony‟s housing qualifications, or
terms of reference from the Respondent.
AWARD
16. The Tribunal finds that Mr Merrony was unfairly dismissed by the States of Jersey,
Department for Education, Sport & Culture and in accordance with Article 77 of the Law
HEREBY AWARDS to him the sum of £6,735.84
16
Jersey Employment Tribunal
INTERIM HEARING
Case Number: 1310177/06
Applicant: Mr Desmond Carro
Respondent: Travtel Leisure Group Limited
Hearing on 1st March 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Mr P Woodward and Mr J McCartan, Panel Member
Representation:
For Applicant: Mr Carro represented himself
For Respondent: Mr Huw Thomas, of Ogier represented the Respondent.
In attendance: Mrs Julie Carro, director of the Respondent.
1. This hearing was convened by the Deputy Chairman in order to establish the effective date
of termination („the EDT‟) of Mr Carro‟s contract of employment with the Respondent.
2. It is necessary to establish the EDT in order to consider a second, equally important matter,
of whether Mr Carro was late in filing his complaint of unfair dismissal with the Employment
Tribunal pursuant to article 76 of the Employment (Jersey) Law 2003 („the Law‟)
3. Subject to the findings of fact referred to in paragraphs 1 and 2 above, the Tribunal will
move on to consider whether to allow Mr Carro‟s late application to proceed to a full hearing
bearing in mind the considerations contained in article 76(2) of the Law.
The First Issue – The Effective Date of Termination of Mr Carro‟s employment.
4. The background to the application is as follows. Mr Carro was called to a meeting at the
offices of Michael Voisin & Co and presented with a letter dated 12th June 2006 from Advocate
M Voisin on behalf of The Trustees of the D J Carro Will Trust („the Termination Letter‟)
confirming that Mr Carro had been given 16 weeks notice of termination of his employment
from 6th June 2006. The Termination Letter described, inter alia, how Mr Carro would continue
to receive his current monthly salary during the 16 week period and be entitled to a severance
payment of 3 months pay at the end of the 16 week period of notice. It was made clear by
Advocate Voisin that Mr Carro was not expected to work for the Respondent during the 16
week period. Also the terms of the Termination Letter were not open to negotiation. Mr Carro
accepted the terms of the Termination Letter but asked Advocate Voisin what his position
would be if he was to accept another job during the 16 week period although he was available
to work for the Respondent during this period if they required him to do so. Mr Carro
reported that Advocate Voisin replied to the effect that „he could start work on Monday and it
would not affect his financial rights‟ under the Termination Letter. Mr Thomas confirmed that
this was his clients understanding of the conversation. The Tribunal heard in evidence that
the Termination Letter was amended as follows, „Obtaining another position does not affect
the above agreement‟, and signed by both parties. This amendment was made, the Tribunal
were informed, on 12th June 2006.
5. Mr Thomas, submitted on behalf of the Respondent, that the effect of this amendment to the
Termination Letter was to remove the requirement for Mr Carro to stay at home during the
notice period, commonly referred to as „garden leave‟ and that Mr Carro became free to work
for another party without restriction. Mr Thomas said that this meant that the EDT of Mr
Carro‟s contract changed from 26th September 2006 (the date 16 weeks after 6th June 2006) to the
12th June 2006, the date of the Termination Letter.
17
6. Mr Carro gave evidence that as far as he was concerned; notwithstanding the amendment to
the Termination Letter, he was available to work for the Respondent and willing to assist the
Respondent during the period of his notice. Mr Carro said that he did not understand that the
amendment had negated his notice period as he was still in receipt of his monthly salary and
still bound by confidentiality provisions in the Termination Letter. However Mr Carro
admitted that in the 6 weeks after the date of the Termination Letter he had only been
contacted twice by staff of the Respondent, and each time on very minor matters, so he
thought he had better „get on with looking for a job‟. Mr Carro admitted in evidence that he
understood that this would not affect his terms of severance under the Termination Letter, and
with hindsight he could see that he was „let go‟ by the Respondent on 12th June 2006.
7. Article 63 (1) of the Law describes the „effective date of termination‟ as follows:-
(1) Subject to the following provisions of this Article, in this Part “the effective date of
termination” –
(a) in relation to an employee whose contract of employment is terminated by notice,
whether given by his employer or by the employee, means the date on which the notice
expires;
(b) in relation to an employee whose contract of employment is terminated without
notice, means the date on which the termination takes effect; and
(c) in relation to an employee who is employed under a fixed term contract of
employment which expires without being renewed under the same contract, means the
date on which the term expires.
Decision
8. The Tribunal considers itself under an obligation to decide an EDT in a common sense and
practical manner, looking at all the circumstances of the case. Here, looking at the formal tones
of Mr Carro‟s interview with Advocate Voisin at which the Termination Letter was produced
for signature and the clear understanding of the parties that Mr Carro was not expected to
work for the Respondent during the period of notice, it was clear that Mr Carro‟s services were
being dispensed with with effect from 12th June 2006. Advocate Voisin‟s words that Mr Carro
could „start work on Monday‟ and it not affect his financial benefits under the Termination
Letter underlined the arrangement that Mr Carro was not expected to stay at home during the
16 week period of his notice on „garden leave‟ and was free to work for someone else
immediately. This amendment to the Termination Letter had the effect of terminating the
employer / employee relationship immediately causing the period of notice to expire. The
provisions concerning payment of salary during the notice period became a financial term for
the benefit of Mr Carro following the termination of his contract of employment with the
Respondent; in effect a payment in lieu of notice. The Tribunal finds that the EDT of Mr
Carro‟s contract with the Respondent was 12th June 2006.
The Second Issue – Did Mr Carro present his complaint of unfair dismissal to the Tribunal in
accordance with Article 76(2) (a) of the Law?
9. Article 76 (2) (a) of the Law states as follows:-
(2) Subject to paragraph (3), the Tribunal shall not consider a complaint under this Article
unless it is presented to the Tribunal –
(a) before the end of the period of 8 weeks beginning with the effective date of termination; or
(b) ……….
10. On the basis that the Tribunal has concluded that the EDT of Mr Carro‟s employment with
the Respondent was 12th June 2006, Mr Carro should have presented his complaint to the
Tribunal by 7th August 2006 at the latest in order to comply with Article 76 (2) (a) above. Mr
Carro filed his complaint with the Tribunal on 13th October 2006. This is 9 weeks later than the
period prescribed by article 76 (2) (a) above.
18
Decision
11. The Tribunal finds that Mr Carro did not present his complaint of unfair dismissal to the
Tribunal in accordance with Article 76 (2) (a) of the Law.
The Third Issue – Should the Tribunal allow Mr Carro‟s complaint of unfair dismissal to
proceed, notwithstanding that it is out of time by using the discretion accorded to it by Article
76 (2) (b) of the Law.
12. Article 76 (2) (b) of the Law states as follows;
(2) Subject to paragraph (3), the Tribunal shall not consider a complaint under this Article
unless it is presented to the Tribunal –
(a) …………, or
(b) within such further period as the Tribunal considers reasonable in a case where it is
satisfied that it was not reasonably practicable for the complaint to be presented before
the end of that period of 8 weeks.
13. The Tribunal has adjourned the hearing of this issue until 21st March 2006 in order to allow
an affidavit of evidence to be prepared by JACS in respect of the advice they gave to Mr Carro
leading up to his application to the Tribunal.
Jersey Employment Tribunal
INTERIM HEARING – 2
Case Number: 1310177/06
Applicant: Mr Desmond Carro
Respondent: Travtel Leisure Group Limited
Hearing on 21st March 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Mr P Woodward and Mr J McCartan, Panel Members
Representation:
For Applicant: Mr Carro represented himself
For Respondent: Mr Huw Thomas, of Ogier represented the Respondent.
1. This hearing is convened for the purpose of deciding whether Mr Carro‟s complaint of
unfair dismissal should proceed to a tribunal hearing notwithstanding that it was made out of
the time limits prescribed by Article 76 of the Employment (Jersey) Law 2003 („the Law‟)
2. This hearing is a continuation of the matters considered by the Tribunal at the Interim
Hearing held on the 1st March 2007 and the decision made herein should be read and
construed with those contained in the decision of the 1st March 2007.
3. Articles 76(1) and (2) of the Law provide as follows:
76 Complaints to the Tribunal
19
(1) Subject to Article 80(2), a complaint may be presented to the Tribunal against an employer
by any person that he was unfairly dismissed by the employer.
(2) Subject to paragraph (3), the Tribunal shall not consider a complaint under this Article
unless it is presented to the Tribunal –
(a) before the end of the period of 8 weeks beginning with the effective date of termination; or
(b) within such further period as the Tribunal considers reasonable in a case where it is
satisfied that it was not reasonably practicable for the complaint to be presented before the end
of that period of 8 weeks.
Article 80 (2) does not apply to this case and neither does article 76(3)
4. The Tribunal have been asked to determine whether Mr Carro‟s complaint should be
allowed to proceed under article 76(2)(b).
5. At the Interim Hearing held on the 1st March 2007 the Tribunal found that the Effective Date
of Termination („the EDT‟) of Mr Carro‟s contract was the 12th June 2006, the date of the letter
from Advocate M Voisin on behalf of the Trustees of the D. J. Caro Will Trust, („the
Termination Letter‟). To recap, the Termination Letter gave Mr Carro 16 weeks notice of
termination of his employment from 6th June 2006 and set out the terms of payment of his
notice which were that he would receive his current monthly salary during the 16 week period
and be entitled to a severance payment of 3 months pay at the end of the 16 week period. In
return Mr Carro was expected to keep the terms of the Termination Letter confidential and
was required to confirm that „no discussion has or will take place with members of staff or
third parties‟.
6. The Tribunal were also directed to an email sent by Mrs Julie Caro to Mr Carro on the 6th
June 2006 („Mrs Caro‟s e-mail‟) which gave Mr Carro 16 weeks notice from the 6th June 2006
together with a severance payment of 3 months salary. Mrs Caro‟s e-mail concluded that, „this
offer … is obviously conditional on maintaining confidentiality on company matters… and
not pressing any claim at an industrial tribunal‟.
7. The Tribunal heard evidence from Mr Carro, and were in receipt of an affidavit from David
Witherington, director of JACS, confirming that Mr Carro consulted JACS by telephone on 7th
June 2006 for general advice about his position as it was clear to him from Mrs Caro‟s e-mail
that he was being made redundant after 30 years service. Mr Carro said that he took no advice
on the process of a complaint to the Tribunal at this stage and no such advice was offered to
him.
8. The Tribunal also heard evidence from Mr Carro, that following the expiry of his notice,
which as he understood the position, was on 26th September 2006, that he went to JACS on 9th
October 2006 for specific advice on his situation and took home a JET 1 form to complete. This
visit to JACS was confirmed in Mr Witherington‟s affidavit referred to in paragraph 7 above.
10. It is important to establish a time line of events in this case. It was agreed by the parties
that they are as follows:
6/6/06 - Mrs Caro‟s e-mail received by Mr Carro
12/6/06 - The Termination Letter is signed and amended
12/6/06 - The EDT
26/9/06 - The 16 week period referred to in the Termination Letter
expires
9/10/06 - Mr Carro seeks advice from JACS
13/10/06 - Mr Carro files his JET1 at the Employment Tribunal
11. The effect of this time line is as follows:
 There is a period of 17 weeks between the EDT and the date Mr Carro‟s JET 1 is
filed
20
 Mr Carro‟s JET 1 is filed 9 weeks after the period of the 8 week filing period
prescribed by Article 76(2)(a) of the Law
12. There is no disagreement that Mr Carro‟s complaint was filed beyond the 8 week period
stipulated by Article 76(2) (a). Looking at article 76(2)(b) of the Law there are two stages in the
consideration of whether to allow a complaint to be considered by the Tribunal outside of
these time limits, these are:
a) Was it reasonably practicable for the complaint to be presented before the
end of the 8 week period, and
b) If so, was the further period, of here, nearly 3 weeks or 12 clear working
days, reasonable?
The Tribunal will take these points in turn.
„Reasonably practicable‟.
13. It was established in Jones v RBSI 2006 JET that the Employment Tribunal should interpret
the word „practicable‟ in a liberal sense and thus in favour of the employee. In this case Mr
Carro did not seek advice on his position because of three reasons:
i He believed that his notice expired at the end of the 16 week period on 26th
September 2006,
ii He believed he was following the wording of the Termination Letter by not
discussing his situation with third parties,
iii He believed that failure to follow such undertaking would mean that he would not
continue to receive his notice pay which was being paid monthly over 4 months, or
receive his severance payment of 3 months salary payable at the end of the 16 week
notice period.
14. Looking at these points in turn it is interesting to note that although the Termination Letter
was attached to Mr Carro‟s JET 1, the significance of the handwritten amendment (which the
Tribunal decided on 1st March 2007 had the effect of shortening the period of Mr Carro‟s
notice to the date of the letter) was only picked up by the Deputy Chairman and the
Respondent‟s lawyer. This document was viewed by Mr Carro, the Staff at JACS and indeed
the side members of the Tribunal prior to the 1st March 2007 hearing and none of these lay
people realised it could affect the Employment Contract between Mr Carro and the
Respondent. In Dedman v British Building & Engineering Appliances [1974] 1WLR 171, which
was referred to by the Employment Tribunal Chairman in Jones v RBSI JET 2006 and noted as
influential in Jersey, Lord Denning M.R., says;
„I would first consider it as if Mr Dedman did not go to his lawyers, but conducted his case on
his own. He was given a notice of dismissal which was capable of two interpretations. The
effective date of termination was read by him and by two members of the tribunal, both laymen
as May 31, 1972; but it was read by all the lawyers, as May 5, 1972. Let us suppose that Mr
Dedman read it as a layman and presented his complaint within 4 weeks from May 31, 1972: but
the lawyers afterwards said that his interpretation was wrong. I should have thought that he
would have had just cause or excuse for his ignorance of the correct date. In his state of mind, it
was „not practicable‟ for him to present it within the time limit.‟ (Emphasis added).
15. The Tribunal finds that Mr Carro‟s situation is analogous to the scenario envisaged by
Lord Denning in Dedman above. The Interim Hearing held on 1st March 2007 was the first
time that this point had been considered by the Jersey Employment Tribunal. JACS, to whom
Mr Carro went for advice, whilst providing a source of expertise on employment law matters,
are not legally qualified. Mr Carro has no legal training and said on oath that he had not
sought any legal advice about his situation. It is therefore to be expected that no one would
have advised Mr Carro of the significance of the handwritten note to the Termination Letter
and the likelihood that it would affect his EDT.
16. The second and third reasons Mr Carro gave for not being able to put his complaint in to
the Tribunal on time can be dealt with together. Mr Carro took the contents of the
21
Termination Letter very seriously and was clearly anxious to comply with the confidentiality
provisions in it and also in Mrs Caro‟s e-mail. The Tribunal are mindful that Mr Carro‟s notice
pay was being paid to him in 4 monthly instalments and at the end of the period he stood to
receive 3 months pay in one lump sum by way of a severance package. This amounts to a
significant amount of money and as Mr Carro was without employment for some time and
without immediate prospects, this package was his only source of income. Indeed the job Mr
Carro took in July 2006 with the Jersey Opera House was for three months only and only at
one quarter of his previous wage. Also the threat contained in Mrs Caro‟s e-mail must not be
overlooked. She clearly said that the Respondent‟s offer was, „conditional on maintaining
confidentiality… and not pressing any claim at an industrial tribunal‟. This Tribunal is not
surprised that in those circumstances Mr Carro did not submit a claim to the Employment
Tribunal until after the expiry of his notice as perceived by him and as described in the
Termination Letter.
17. For these reasons the Tribunal is satisfied that it was not reasonable practicable for Mr
Carro‟s complaint to be presented to the Tribunal before the end of the period of 8 weeks after
his EDT.
„Reasonable Further Period‟
18. The Tribunal is also required to consider whether the „further period‟ between the
expiration of the 8 week period and the 13th October 2006, is reasonable.
19. As described in paragraph 11 above, Mr Carro filed his JET 1, 9 weeks after the expiry of
the 8 week filing period prescribed by Article 76(2) (a) of the Law. The Tribunal have already
stated their willingness to accept Mr Carro‟s confusion about the EDT of his contract of
employment. However, even if the Tribunal accept the 26th September 2006 as Mr Carro‟s
perceived date of termination of his notice, Mr Carro still did not contact JACS for advice until
the 9th October 2006, nearly 2 weeks later or 8 working days later. Following this contact Mr
Carro did not file his JET 1 until the 13th October 2006 a further 4 days later. Mr Carro said that
this delay was because he messed up his first draft and needed a further copy from JACS.
20. The Tribunal heard evidence from Mr Carro that he had been thinking a lot during August
and September about his position with the Respondent and the way he had been treated. The
Tribunal accepts that Mr Carro was reluctant to discuss his position with anyone during this
period for the reasons described in paragraph 16 above. The Tribunal notes that Mr Carro‟s
perceived period of notice was 4 months; this is indeed a long period of reflection. However
Mr Carro had contacted JACS in June and clearly knew of their existence and function. The
Tribunal were surprised that Mr Carro had not contacted JACS or any other party for
confidential advice on his position during this 16 week period, or indeed researched his
position on the internet or contacted the Tribunal for their explanatory literature. Mr Carro
presents as an intelligent , articulate man and the Tribunal heard he had been in charge of
others when he worked for the Respondent, and indeed held positions of responsibility in
that organisation over the years. Accordingly, Mr Carro is an applicant who is cognisant of
business systems and should have anticipated procedures being in place for bringing an
action in the Employment Tribunal. By his own admission, Mr Carro contacted JACS on 9th
October 2006 without knowing whether there were time limits in force or not. This shows a
certain recklessness in a man of authority and reluctance to take advice. The Tribunal would
have expected Mr Carro, after 4 months reflection to be eager to seek advice on his position as
soon as his notice expired but he waited nearly 2 weeks to approach JACS and then took a
further 4 working days to submit his application to the Tribunal.
21. In the persuasive English case of Porter v Bainbridge Ltd. [1978] 1 W.L.R. 1145 which was
concerned with an appeal against a refusal by an Industrial Tribunal to accept that it was
reasonably practicable for a complaint under an equivalent provision in English legislation to
be presented in time, Lord Justice Stephenson pointed out as follows:
22
„Those judgments indicate that if the complainant in those three months does not know his
rights, or of the time limit, and ought not to have known of them because there was nothing to
put him on enquiry, he is not at fault and the industrial tribunal should be satisfied that it was
not reasonably practicable. But if he is at fault, or he goes to solicitors who are at fault, in
allowing the three months to go by, the industrial tribunal should not be satisfied. He is not
necessarily excused from presenting his complaint in time by ignorance of his rights. The tribunal
must look at all the circumstances , the opportunities he had for finding out his rights whether he
was discouraged or impeded or misled or deceived, what explanation he can give for his
ignorance of them.‟
The only Jersey legal authority on this point is Jones v RBSI (JET 2007) which was referred to
in the present hearing and concerned an applicant who had taken, „steps to go beyond mere
ignorance consulting both JACS and a firm of lawyers.‟ On being informed of the need to
make a complaint Mr Jones acted promptly even though the 8 week time limit had expired. For
that reason the Jones case can be distinguished from the present one.
22. The time limit prescribed by Article 76(2) is in the Law to provide certainty to employers
and a limitation on the commencement of a formal process leading possibly to an Employment
Tribunal hearing. The Tribunal will only set aside such time limit in truly exceptional
circumstances, otherwise it becomes meaningless in all cases. For the reasons described in
paragraph 20, above, it cannot be said that Mr Carro acted promptly in dealing with his case.
For this reason the Tribunal finds that the „further period‟ between the expiration of the 8
week period prescribed by Article 76 (2) (a) of the Law and the 13th October 2006, is
unreasonable and Mr Carro‟s complaint of unfair dismissal is hereby struck out by the
Tribunal.
23. The Tribunal would wish to make one final point. The respondent‟s lawyer made much of
the fact that Mr Carro did not seek legal advice on his position but instead chose to use the
advice of JACS. This was Mr Carro‟s choice – JACS has been established by the States of
Jersey as a place to seek independent advice and assistance on employment law matters. It has
an expertise built on experience and knowledge and furthermore is a free service available to
any party. A failure to seek legal advice is not a hindrance to an action in the Employment
Tribunal.
23
Jersey Employment Tribunal
INTERIM HEARING
Case Number: 2509158/06
Applicant: Mr Andrew Prime
Respondent: Either:
(a) Select Recruitment Limited
or
(b) Island Rib Voyages Limited
Case Summary: Notice pay due; nature of employment; balance of probabilities
of evidence heard by Tribunal.
Hearing on 7 March 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Mrs K Flageul and Mr T Langlois, Panel Members.
Representation:
For Applicant: The Applicant represented himself
For Respondent: Mr Sean O‟Flaherty, director, represented Select Recruitment.
Mr Michael James, director, represented Island Rib Voyages
Limited.
The Facts
Mr Prime worked at Island Rib Voyages as its Operations Manager between 28th July 2006 and
31st July 2006. Mr Prime believed he was employed by Island Rib Voyages Limited („IRVL‟)
but IRVL maintains he was employed by Select Recruitment Limited („Select‟). Select agrees
with IRVL that it was Mr Prime‟s employer and provided Mr Prime‟s services to IRVL on a
temporary basis. It is necessary to identify Mr Prime‟s employer because Mr Prime believes
that he is owed one week‟s wages by way of notice. If IRVL is Mr Prime‟s employer this sum
may be payable. However if Select is Mr Prime‟s employer, this sum is not payable because
Mr Prime‟s employment with Select has not been terminated. Mr Prime registered for
employment with Select on 14th July 2006.
Decision
The Tribunal was presented with different accounts of the relationship between Mr Prime and
Select and/or IRVL by Mr Prime, Mr James and Mr O‟Flaherty. However to the extent that
Select were involved with IRVL, the evidence of Mr James and Mr O‟Flaherty was the same.
When faced with widely different evidence the Tribunal is always faced with the dilemma of
whose evidence it is going to believe. When reaching a decision the Tribunal is required to
determine the case on the „balance of probabilities‟.
In Miller v Minister of Pensions 1947 2 All ER 372, Mr Justice Denning defined the Civil
Standard of proof in the following terms,‟ [The strength of the evidence] is well settled. It
must carry a reasonable degree of probability, but not so high as is required in a criminal case.
If the evidence is such that a tribunal can say: „we think it more probable than not‟, the burden
is discharged, but if the probabilities are equal, it is not‟.
The burden of proof in this case is on Mr Prime: he must show the Tribunal that he was
employed by IRVL, or it was reasonable for him to consider himself employed by them, in
order to be awarded a week‟s pay by way of notice pay due.
On hearing the evidence of Mr Prime, Mr James and Mr O‟Flaherty, the Tribunal have found
little common ground apart from the following:
24
 Mr Prime responded to the advert for specific staff members placed in the Jersey
Evening Post by Pure Adventure on 27th June 2006 by contacting Mr James,
 Mr Prime submitted his CV to Mr James as a result of that contact,
 Mr Prime met with Mr James as a result of submitting his CV (the detail and emphasis
of that discussion is not agreed),
 As a result of that meeting, Mr Prime attended a hovercraft pilotage session at West
Park with 2 other candidates (Mr Prime does not accept that this was a job interview),
 IRVL did require an Operations Manager for its business,
 Mr Prime registered for work with Select on 14th July 2006,
 Mr James contacted Mr Prime directly about his interest in the Operations manager
position with IRVL,
 Mr Prime having confirmed his interest in the position of Operations Manager was
told by Mr James to meet Mr Mathieson, his co-director,
 Mr Prime and Mr Mathieson met alone at The Bar and discussed the position of
Operations Manager of IRVL,
 Mr Prime and Mr Mathieson and Mr James met at the Pomme D‟Or Hotel on 27th July
2006 and discussed Mr Prime‟s start date (other items discussed at that meeting are not
agreed),
 Mr Prime started work at IRVL on 28th July 2006,
 Mr Prime received a telephone call from Select telling him to attend at their offices and
sign a contract of employment on 28th July 2006 and again on 31st July 2006,
 Mr Prime‟s involvement with IRVL was terminated on 31st July 2006 following a
telephone call from Select.
On hearing the evidence of Mr Prime, Mr James and Mr O‟Flaherty, it is clear that there are
many areas of dispute between the parties, including:
 Mr Prime said his first meeting with Mr James (in response of the JEP advert) was a
general chat about the work of IRVL and opportunities arising in it. Mr James says it
was in interview for a position of Instructor included in the JEP advert which he could
see from Mr Prime‟s CV that he was qualified for. This interview led to the hovercraft
pilotage session at West Park.
 The hovercraft pilotage session was led by Roger Le Maistre and its purpose, said Mr
James, was to choose one or two employees from the three candidates asked to attend.
Mr Primes was not chosen. Mr Prime said he thought this session was purely an
example of the work of IRVL.
 Mr Prime said that after the session he and Mr Le Maistre went for a coffee and Mr Le
Maistre talked to him about the business of IRVL and the opportunities it presented.
Mr James said that Mr Le Maistre is not involved with IRVL and had no authority to
represent it. Further Mr James was not present or aware of the conversation having
taken place.
 Mr James said he contacted Mr Prime about the Operations Manager job at the
suggestion of Select who had by then received Mr Prime‟s CV. This was confirmed by
Select. Mr James said he mentioned „Select‟ when he started speaking to Mr Prime
about the position. Mr Prime does not recall Select being mentioned in the
conversation,
 Mr Prime said that when he met Mr Mathieson alone at The Bar, Mr Mathieson
described the Operations Manager‟s job as being –
- To the end of the season (on a fixed term contract),
- 6 days a week
- Flexible hours
- Worth £3,000 per month + commission
 Mr Prime said this was based on Mr Mathieson‟s experience in Guernsey. Mr James
was not present at that meeting but was incredulous that Mr Mathieson should offer
such a salary or discuss these terms. Further, it had been agreed between Mr
Mathieson and Mr James that Mr James was in charge of recruitment. He said the
purpose of the meeting at The Bar was for the two people to meet.
25
 Mr Prime said that the purpose of the Pomme D‟Or meeting on 27th July 2006 was to
„firm up‟ the arrangements he had made with Mr Mathieson as well as to clarify his
hours and start date. Mr James agreed that they discussed Mr Prime‟s hours and start
date but said that he also confirmed that the position was a temporary contract at £8.50
per hour through Select. He said Mr Prime was unhappy on hearing this and said he
was worth more and wanted a permanent contract. Mr Prime maintained that Select
were not mentioned at all.
 Mr James said that he informed Mr Prime at the Pomme D‟Or meeting that he was to
go to Select on 28th July to sign his contract with them; this is denied by Mr Prime.
 Mr Prime said the first he heard from Select was on 28th July 2006 when he got a phone
call from them asking him to come into their office and sign his contract.
 Mr Prime said he spoke to Mr Mathieson about the „change‟ in his employment
(because Mr James was absent) and that Mr Mathieson said, „he‟d review the situation
after the weekend‟.
 Mr Mathieson is no longer a director of IRVL and was not available to give evidence.
The Tribunal found the following evidence persuasive and has drawn the stated conclusions
from it:
 IRVL had retained Select in April/May 2006 to provide non-specialist staff for the
business.
 A job description of the post of operations manager had been produced by Select for
IRVL in April/May 2006
 Mr James used the JEP advert in order to recruit specialist staff for his business. He
gave evidence that in his experience these people tend to be self employed and direct
recruitment is necessary
 Mr James gave evidence that out of him and Mr Mathieson, he was responsible for
recruiting staff
 The JEP advert was specific about the staff the business was looking for and Mr James
considered Mr Prime for the hovercraft instructor post only. On hearing the evidence
of both parties the Tribunal considers that whilst there may have been a general
discussion about the „Pure Adventure‟ business at their first meeting, Mr James did not
suggest any particular role to Mr Prime and there was no consideration of any terms
and conditions or specific details,
 It was agreed that on Mr Prime‟s first day at work he received a telephone call from
Select in his lunch hour, informing him about their role as his employer, his rate of
pay and the existence of the temporary contract. However, despite feeling very
disgruntled about his situation, Mr Prime finished his day and worked on Saturday
and turned into work on the Monday. Mr Prime made no effort to talk to Mr James
about his situation, relying only on Mr Mathieson‟s vague agreement to discuss the
situation on Monday.
 Mr James gave evidence that he received a telephone call from Select on Friday 28th
July 2006 informing him that Mr Prime had not signed his contract. Mr James then
contacted Mr Prime and asked him why he had not signed up and Mr Prime replied
that he was too busy. Mr James informed the Tribunal that he instructed Mr Prime to
go in and sign the contract with Select later that day. On being informed by Select on
Friday evening that Mr Prime had still not been in, Mr James told him to go to Select
on Monday. Mr Prime did not deny these conversations having taken place. The
Tribunal construes this final instruction from Mr James – to sign the contract on
Monday – as indicative that there would be no discussion of Mr Prime‟s terms of
employment on Monday, despite what Mr Mathieson said. In addition Mr Prime
finished working on Friday, and worked the Saturday and Monday morning knowing
that he was required to sign the contract with Select and being aware of its terms.
 When Mr Prime contacted Select on the Friday lunchtime and queried the involvement
of Select, he was informed by them that Select were his employer and were paying his
wages. This is a direct statement of control by an employer.
 The Tribunal heard evidence that Mr James was informed by Select at 10 o‟clock on
Monday 31st July 2006 that Mr Prime still had not signed his contract, despite their
26
repeated request to do so. Mr James contacted Mr Prime again, and he became verbally
aggressive and abusive about working practices. Mr James decided that he did not
wish to work with Mr Prime and instructed Select to terminate his appointment, which
they did immediately.
Conclusion
The Tribunal finds that is was always the intention of IRVL to use Select to recruit an
Operations Manager. The Tribunal also finds that at the first meeting of Mr James and Mr
Prime, Mr James was only looking to fulfil the vacancies described in the JEP advert- he was
not thinking about the Operations Manager post at that time. The Tribunal concluded that
whilst Mr Prime may have misunderstood his situation following his conversation with Mr
James about the Operations Managers position, which may have become further confused by
Mr Mathieson, he should have been under no illusions regarding the involvement of Select by
lunchtime on his first day because Select had contacted him directly. This knowledge would
have been confirmed by the repeated instructions of Mr James to attend Select‟s offices to sign
his contract of employment. However, Mr Prime continued to work for another 2 days thus
acquiescing in his situation. Finally on realising that he did not wish to work with Mr Prime,
Mr James contacted Select to terminate the relationship; this is another indicator that as far as
IRVL was concerned, Select was regarded throughout as the employer. The Tribunal finds, on
the balance of probabilities of the evidence heard, that Mr Prime is employed by Select and is
not entitled to any notice pay following the termination of his involvement with IRVL.
27
Jersey Employment Tribunal
INTERIM HEARING
Case Number: 0510166 / 06
Applicant: Mr Waldemar Szczypta
Respondent: Jhansi Limited t/a Mountview Hotel
Case Summary: Application to reopen case previously withdrawn; ostensible
authority of representatives to settle a case; powers of the
Tribunal
Hearing on 20th March 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Representation:
For Applicant: Mr Szczypta represented himself
For Respondent: Mr Rory Lapidus, director
Background
1. Mr Szczypta was employed as a chef by the Respondent from 15th March 2006 to 1st October
2006, the end of his contract. Mr Szczypta believed that he was owed certain sums of money by
his ex-employer and filed an application to recover these sums with the Employment Tribunal
on the 5th October 2006. Mr Szczypta was informed that it would take a few months for his
application to be heard due to the heavy workload of the Tribunal and as he intended to
return to Poland for a few months holiday he was advised by JACS to appoint a representative
to act on his behalf in this matter in his absence.
2. Mr Szczypta decided to appoint Mr Pawel Szyman to be his representative and duly
completed Mr Syzman‟s details in Part 9 of Form JET 1 (the section dealing with
Representatives).
3. Form JET 1 was sent to the Respondent who responded by filing Form JET 2 on 15th
November 2006. Accordingly by receipt of Form JET 1 the Respondents were aware of Mr
Syzman‟s appointment as Mr Szczypta‟s representative in the matter.
4. Part 9 of Form JET 1 states as follows – “Please fill in this section only if you have appointed
a representative. If you do fill this section in, we will in future only send correspondence to your
representative and not to you. It is your representative‟s duty to keep you informed.” It should
be noted that the Employment Tribunal Guides to „Making a Claim‟ and „Responding to a
Claim‟ also contain similar provisions.
5. Following a meeting with Mr Lapidus during which Mr Lapidus and Mr Szyman went
through the heads of claim on Mr Szczypta‟s Form JET 1 and the notes of payments that he
had received from his employer on finishing his contract, Mr Szyman decided that in fact Mr
Szczypta had no claim against the Respondent as all payments had been made. Accordingly
Mr Szyman contacted the Tribunal, via the Hotel‟s receptionist, for a form by which he could
notify the Tribunal of a withdrawal of Mr Szczypta‟s complaint.
6. The Employment Tribunal supplied a Notice of Withdrawal of Complaint Form to Mr
Szyman which was signed by him and returned to the Tribunal on 29th November 2006.
7. The Secretary to the Employment Tribunal subsequently removed Mr Szczypta‟s complaint
from the list.
28
8. When Mr Szczypta returned to Jersey in December 2006 he discovered that Mr Szyman had
withdrawn his complaint from the Employment Tribunal. Mr Szczypta was very angry about
this and asked the Tribunal to reinstate his claim to its lists on the basis that Mr Szyman had
no authority to settle his claim against the Respondent.
9. This is the first application of this nature received by the Tribunal so it is necessary for the
Tribunal to consider whether it has the power to reinstate a claim which has been withdrawn
by the Applicant.
Decision
10. Mr Szczypta said in evidence that he appointed Mr Szyman „to see through the case‟ which
as far as he was concerned included representing him before the Tribunal (if the case had
come up whilst he was away) and settling the case, but only if such settlement was in his
favour. Mr Szczypta was clear in his evidence that Mr Szyman had no authority to negotiate
the terms of the case on his behalf.
11. Mr Lapidus said in evidence that they relied upon Mr Szyman‟s authority to represent Mr
Szczypta as stated in Form JET 1 and also upon Mr Szyman‟s own verbal representations of
his capacity. Mr Lapidus pointed out that it is common in the hospitality industry for
employees to leave the island and instruct others to look after their affairs in their absence. Mr
Lapidus was quite comfortable in dealing with Mr Szyman in this manner.
12. Mr Lapidus gave evidence that he went through Mr Szczypta‟s final payslip 4 times with
Mr Szyman in order to show him that Mr Szczypta did not have a complaint against the hotel
as contained in Form JET 1. Mr Lapidus considers Mr Szyman to be intelligent and competent
and he seemed to understand totally the conversation and discussion. At the end of the
meeting Mr Lapidus suggested that Mr Szyman telephone Mr Szczypta in Poland and obtain
his views on the matter. Mr Lapidus left the room but heard Mr Szyman speaking in Polish.
Mr Szyman told Mr Lapidus that he had spoken to Mr Szczypta and obtained his agreement to
settle his complaint. Accordingly Mr Lapidus thought that was to be the end of the matter and
suggested that Mr Szyman withdraw the complaint from the Tribunal. One of the Hotel
receptionists contacted the Tribunal on Mr Szyman‟s behalf in order to obtain a form of
Withdrawal of Complaint. Mr Szczypta gave evidence that he was not contacted by Mr
Szyman about this matter.
13. No evidence was heard from Mr Szyman who has refused to discuss this matter at all with
Mr Szczypta or come to a tribunal hearing.
14. The Tribunal Secretary received the Notice of Withdrawal of Complaint, signed by Mr
Szyman as Mr Szczypta‟s representative and relied upon Mr Szyman‟s authority it to remove
Mr Szczypta‟s complaint from the Tribunal‟s list of cases..
15. The Tribunal‟s view is that it is not unreasonable, where one party has appointed a
representative on Form JET 1 or Form JET 2 for others involved in a tribunal action to deal
with such representative unless and until instructions are given to the contrary by such party.
Such appointment stays in place until written instructions are received by the Tribunal and
the other party. This system provides certainty in dealings with and between the parties in the
course of a tribunal hearing by avoiding potential confusion in communication.
16. However such representative must have „ostensible‟ or „apparent‟ authority to represent the
party in question and that authority must come from the appointor, the principal in the
relationship. In this case the Applicant had described Mr Szyman as his representative in
Form JET 1. The terms of paragraph 9, detailed in paragraph 4 above, make it clear that on such
appointment the Tribunal will only deal with such representative. Accordingly the Tribunal is
entitled to assume that such representative has authority to act, provided it has not received
notice to the contrary. For administrative convenience the Tribunal will only rely upon a
29
written cancellation of a representative‟s authority to act which must be signed and dated by
the principal.
17. The next question is whether the parties are entitled to rely upon an appointed
representative‟s authority when trying to settle or conciliate a claim. The practical answer must
be – yes. By appointing a representative a party is making a statement that it does not wish to
be concerned directly with the workings of his case and the parties must instead deal with
such third party. An appointment in this manner gives the representative ostensible
(„apparent‟) authority which is binding as against the other party, whether or not such
representative had in fact any explicit authority to enter into any agreement with the other
party. This authority is subject however to being curtailed or limited and a party may choose
to amend the relevant paragraphs on Forms JET 1 or JET 2 to refer for example to an
appointment for certain dates only or an authority to accept post but not to negotiate or settle
the case on his behalf etc. Any person dealing with a representative should check on the
relevant JET forms that the authority has not been limited in this manner. In the absence of
express amendment it will be very difficult for a principal to disprove his representative‟s
apparent authority to represent him in all aspects of the case.
18. If a party does not complete the relevant paragraph of Forms JET 1 or JET 2 and a party
assumes the role of representative for the applicant or respondent, great care should be taken
by all parties when dealing with such representatives as to the extent of their apparent or
actual authority.
19. I find that Mr Szczypta appointed Mr Szyman to be his representative through the method
of paragraph 9 of JET 1. He did not seek to amend paragraph 9 in any manner and thus limit
Mr Szyman‟s apparent authority to represent his interests in this case. Whether he did limit
Mr Szyman‟s actual authority to represent him is a matter for Mr Szczypta and Mr Szyman to
settle between themselves in another forum. In the present case both the Employment
Tribunal and the Respondent were entitled to rely upon Mr Szyman‟s apparent authority to
represent Mr Szczypta‟s interests in his complaint against the Respondent as contained in
paragraph 9 of Mr Szczypta‟s JET 1.
20. Accordingly Mr Szczypta‟s application that his case be reinstated to the Employment
Tribunal‟s list of cases to be heard does not succeed. In the circumstances it is also not
necessary for the Tribunal to consider at this time whether it has the power to order such
reinstatement of a case.
21. The Tribunal would consider it good practice, but not essential, if the employer were to ask
the representative to check with his principal (the Applicant/employee) that a proposed
settlement is acceptable, before it is agreed upon and the complaint withdrawn by the
Tribunal. However such consultation is not a matter for the Tribunal Secretary to be concerned
with.
30
Jersey Employment Tribunal
ORDER
Case Number: 0910172 / 06
Applicant: Mr A Burdess
Respondent: Professional Fulfilment Services Ltd
Hearing on 22 March 2007
Before: Mrs N Santos-Costa, Deputy Chairman
WHEREAS:
The Respondent admits that it failed to give the Applicant a written statement of the terms of
his employment within 4 weeks of the Applicant commencing employment in accordance
with the requirements of Article 3 of the Employment (Jersey) Law 2003 („the Law‟).
Such failure is an offence under the Law and in accordance with Article 9 of the Law the
Respondent is liable to a fine not exceeding level 4 on the standard scale.
The Criminal Justice (Standard Scale of Fines) (Jersey) Law 1993 prescribes a fine at level 4 of
the standard scale to be a sum not exceeding £5,000.
IT IS HEREBY ORDERED in accordance with Article 9 of the Law that the Respondent be
FINED the sum of £250.00 in respect of this offence.
31
Jersey Employment Tribunal
Case Number: 2609-159/06
Applicant: Mrs Samantha Holliday
Respondent: Next Retail Limited
Case Summary: Constructive Unfair dismissal, implied terms of contract of
employment, reasonable variation of contractual terms.
Hearing on 26th March 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Mrs M Curtis and Mr P Kirwan, Panel Members
Representation:
For Applicant: Mrs Holliday did not appear
For Respondent: Mr Mathew Cook, Mourants
Witnesses:
For Applicant: None
For Respondent: Mr Mark Smith, Assistant Store Manager
Mr Helder Fernandes, Senior Sales Assistant.
The Facts
1. Mrs Holliday was employed as a Stock Replenisher on a part time basis by the Respondent
(„Next‟) from 10th November 2003 to 22nd September 2006.
2. The Tribunal were informed in evidence by Mr. Smith that Next operates a disciplinary
policy which consists of 2 levels:-
(a) The Counselling Stage: This covers all breaches of procedure and consists of a
conversation, or words of advice, by a manager to a member of staff who has breached Next
procedure in some manner, for example, by poor time keeping. It is a fairly informal stage but
can result in the conversation being „record carded‟. i.e. noted in the employee‟s personal
records, in which case the employee is required to sign the form to indicate agreement with
the details of the counselling recorded thereon. The details of such counselling received stays
on an employee‟s record throughout their employment with Next but Next‟s policy is that only
those events in the last 12 – 18 months of a further disciplinary hearing should be referred to,
or included, for reference when dealing with a present case.
(b) The Disciplinary Stage: The Tribunal were informed that this is a last resort and only used
for seriously poor behaviour or serious breaches of procedure. Briefly the procedure is this. At
least 24 hours notice in writing of a disciplinary hearing will be given. The employee will be
informed of the nature of the alleged conduct/circumstances and be given the opportunity to
explain the circumstances surrounding the alleged offence. The employee is allowed to be
accompanied by a work colleague or representative. The employee will also be given the
opportunity to appeal against any disciplinary action taken as a result of the disciplinary
hearing. A disciplinary hearing can result in formal counselling being recommended, a first
written warning, a final written warning, dismissal or a finding that the complaint was
unfounded.
3. The Tribunal were also advised of the „corrective coaching/training‟ used by Next. The Store
has 13 training cards which are worked through by an employee starting work with Next.
Completion of the cards signifies completion of an employee‟s training. If an employee
continues to make basic errors, the relevant area of training (via a training card) is revised to
32
allow the employee to reacquaint themselves with process/procedure in that area. This is an
informal stage of discipline existing outside the Respondent‟s disciplinary policy.
4. The Tribunal were shown Mrs. Holliday‟s Record Card giving „Details of her Performance /
Record of Counselling / Disciplinary Action‟ during her employment at Next. The Record
Card, contains 11 entries starting with 17/01/03 (taken by the Tribunal to mean 17/01/04 and
ending on 22/09/06, the date Mrs. Holliday left her employment. Of these entries 8 are for
counselling and 2 are in respect of disciplinary actions. (1 entry dated 15/04/04 does not have
„Outcome‟ completed).
5. Mrs. Holliday‟s first disciplinary hearing was held on 22nd May 2006 because on the 18th
May 2006 and the on 20th May 2006, she had failed to replenish her stock areas in the shop by
31% and 14% respectively. Apparently this can be objectively assessed by the Respondent‟s
stock taking system. On the 18th May 2006, Mrs. Holliday had received counselling for failure
to replenish her stock areas and had been informed that if it happened again it would lead to a
disciplinary hearing.
6. The Tribunal were informed that the disciplinary hearing on the 22nd May 2006 was
conducted in accordance with Next policy by Mr. Smith and on the evidence heard and seen
the Tribunal finds this to be the case. Mrs. Holliday was accompanied by a friend, and HR
advice was provided. The result of the disciplinary hearing was that Mrs. Holliday was given a
first written warning. The Tribunal were informed that Mrs. Holliday was informed of her
right to appeal against the decision to the Area Manager, who visits Jersey every 2 or 3 weeks.
Mrs. Holliday did not appeal or voice any complaint against the decision.
7. On the 22nd September 2006 the store was due to open late in order that a large stock
delivery could be cleared from the shop floor before the public had access to the store. Whilst
there was a sign on the front door informing the public of this situation, there was no sign on
the back door. Evidence was heard from Mr. Fernandes that he was working near the back
door and before 9.00am he heard someone knocking on the back door of the store. He advised
the customer waiting there to wait a few minutes. Mr. Fernandes says he heard knocking
again a while later and saw Mrs. Holliday turn to the customer and shrug her shoulders – she
made no effort to go down the stairs and speak to the customer or to explain the situation.
When the customer came into the shop (about 910am) she complained very loudly about Mrs.
Holliday‟s rudeness to her. Mr. Fernandes said that again Mrs. Holliday made no attempt to
apologise and simply shrugged her shoulders again. By this point, the customer demanded to
see the Manager and Mr. Fernandes contacted Mr. Smith, who took over the complaint from
him. Mr. Smith gave evidence that Next takes customer complaints very seriously and he
promised the irate customer that it would be followed up. Mr. Smith spoke to Mr. Fernandes
and Mrs. Holliday about what had happened. He said that Mrs. Holliday contradicted herself
throughout the interview. Mr. Smith came to the conclusion that the customer, supported by
Mr. Fernandes‟ evidence, did have a valid complaint against Mrs. Holliday‟s conduct and he
decided to instigate disciplinary proceedings. Mr. Smith said that Mrs. Holliday refused to
sign the note of the incident on the Record Card referred to in paragraph 4 above and instead
stormed out of the Next premises. Mrs. Holliday did not return to work.
8. On the 26th September 2006 Mrs. Holliday filed a complaint that she had been
constructively unfairly dismissed by Next.
9. In her JET 1 Mrs. Holliday alleged that she had walked out of her job on the 22nd
September 2006 because the forthcoming disciplinary hearing was, „a culmination of a series
of situations that have occurred during [her] time at Next which forced [her] to leave…‟. Mrs.
Holliday complains of harassment and a lack of fair representation by her two managers,
David Gibson and Mark Smith on that day. Furthermore she said that she had been subject to
„constant victimisation‟ throughout her time at Next, and that her excuses for her poor
performance at work were ignored which lead to the disciplinary hearing of 22nd May 2006.
33
10. The Tribunal Secretary had been in contact with Mrs. Holliday the week before to confirm
her and her representative‟s attendance and made arrangements for the Respondent‟s bundle
to be delivered to her home. Mrs. Holliday informed the Tribunal, via the Tribunal Secretary
before the hearing was to begin that she would not be attending the Hearing. Mrs. Holiday
having read the Respondent‟s bundle over the weekend and having no witnesses of her own,
said she felt unable to present her case but had not notified the Tribunal in writing that she
wished to withdraw her complaint.
11. Accordingly the Tribunal have had to proceed with this case without the presence of Mrs.
Holliday. In all cases the Applicant should endeavour to attend as the Tribunal are able to
assist and encourage unrepresented Applicants, and in this particular case involving
allegations of abuse and victimisation, it is very important to attend as the physical presence
of the Applicant in the Tribunal room is relevant to the Tribunal in gauging the reaction of an
applicant to alleged circumstances.
12. Mr. Gibson was unavailable to give evidence to the Tribunal as he has left the employment
of Next.
13. Mrs. Holliday also made complaints in her JET 1 that she had not received a copy of her
contract, and that her contractual hours of work had been changed on 2 or more occasions
without consultation or reasonable notice given.
14. The Tribunal has taken each complaint in turn.
Constructive Unfair Dismissal
15. In order to establish constructive unfair dismissal it is necessary for Mrs. Holliday to show
to the Tribunal that:
(a) There has been a breach of an express (written) or implied term of her contract of
employment, and,
(b) The breach of contract is sufficiently serious („repudiatory‟), entitling her to resign,
and,
(c) She did resign (by walking out) because of that particular breach.
16. In the absence of evidence to the contrary from Mrs. Holliday, the Tribunal can find no
evidence of a breach of an express (written) term of Mrs. Holliday‟s contract of employment.
Accordingly, the Tribunal had proceeded on the basis that an implied term of all contracts of
employment, that of mutual trust and confidence between employer and employee has been
breached. On the basis of Mrs. Holliday‟s written allegations such a breach of contract could
only have occurred in her opinion through her „constant victimisation‟ as an employee of Next.
17. In the absence of verbal evidence from Mrs. Holliday, the Tribunal must look at Form JET
1 for details of such victimisation. Such evidence is unsworn and subjective – the Respondent
is not able to cross examine it, accordingly the Tribunal have approached it cautiously but in a
practical manner.
18. With regard to the disciplinary hearing on 22nd May 2006, the Tribunal finds that there
was a long lead in to such steps being taken. Mrs. Holliday was given recorded counselling on
4 different occasions for failure to follow the replenishment procedure and the Tribunal were
told that she also received corrective training on many occasions in this regard. Mrs. Holliday
had been warned on 18th May 2006 because of failure to replenish 31% of her stock areas that
another failure would lead to a disciplinary hearing. Mrs. Holliday failed again in her duties
on 20th May 2006, 2 days later, and a disciplinary hearing was convened. The Tribunal do not
find this unreasonable.
19. Mrs. Holliday said that Next failed to take into account her personal circumstances when
disciplining her. On the contrary, the Tribunal finds that Next gave Mrs. Holliday 23 paid
compassionate leave days between 6th January 2006 and 27th February 2006 so that she could
34
be with her husband, and another paid day on 3rd April 2006 to look after her husband. On
19th April 2006 a „back to work‟ interview was conducted at which Mrs. Holliday confirmed
that she was „focused‟ and „ready to come back to work‟, Furthermore, the note of the conduct
of the disciplinary hearing of 22nd May 2006, formally records Mrs. Holliday‟s comments
regarding her difficulty in concentrating and feeling depressed. The Tribunal finds that Next
did not act unreasonably in respect of Mrs. Holliday‟s personal difficulties.
20. Mrs. Holliday complains of harassment and victimisation during her employment with
Next but in the absence of direct evidence from her, the Tribunal has little to go on. The
Tribunal certainly heard no evidence supporting such allegations from the Respondent. The
Tribunal would query whether there was a change in management or management style
during the time Mrs. Holliday was employed because it notes that there is a period in Mrs.
Holliday‟s disciplinary record between 15th April 2004 and 13th October 2006 where no
disciplinary incidents are noted. However no evidence was heard about this period. Again the
Tribunal would query whether Mrs. Holliday suffered due to the stress being felt by Mr.
Gibson (referred to by Mr. Smith) when they worked together, but again no evidence could be
heard on this point either. The Tribunal finds on the evidence it heard that Mrs. Holliday was
given plenty of leeway by Next in her performance issues which seemed to be based on valid
grounds. The Tribunal notes that in Mrs. Holliday‟s record she received counselling on 9th
December 2005 for being rude to a customer and was informed then that another incident
would lead to a disciplinary hearing. The events of 22nd September 2006 proved to be such
incident and a disciplinary hearing was duly instigated but Mrs. Holliday chose not to attend
the hearing and give her side of the story. From the conduct of the 22nd May 2006 disciplinary
hearing, the Tribunal believes she would have been given a fair hearing.
21. Mr. Smith expressed surprise at Mrs. Holliday‟s discontent with her treatment by Next as
expressed in her Form JET 1. He considered that he had a good relationship with her and
suggested that even if she had not wanted to make a formal complaint or grievance or appeal
against the disciplinary process, she could have spoken to him informally, and she did not.
22. The Tribunal are slightly concerned about the Next internal appeal process, in that it is
made to the Regional Area Manager who only visits the store every 2 or 3 weeks. To some
members of staff, especially part time staff, such a manager could seem very remote and the
system does appear cumbersome and unrelated to Jersey. The Tribunal is surprised that the
Store Manager is not involved in such appeals (provided he has not been involved in the
original hearing) in order to localize the appeal system.
Decision
23. The Tribunal finds that there was no breach of the implied term of employment of trust
and confidence by Next and that accordingly Mrs. Holliday was not constructively unfairly
dismissed.
Copy of Contract
24. By Article 3 of the Employment (Jersey) Law 2003 („the Law‟) an employer is required to
give an employee a written statement of the terms of their employment within 4 weeks of the
employee beginning employment.
25. Mrs. Holliday says that she did not receive a copy of her contract of employment and Next
are in breach of their obligations under Article 3 of the Law.
26. Tab 5 of the Respondent‟s bundle of documents contains a copy of Mrs. Holliday‟s contract
of employment duly signed by her on the 10th November 2003. In the absence of evidence to
the contrary from Mrs. Holliday, the Tribunal finds no reason to believe that Mrs. Holliday
did not receive a copy of her contract of employment on signature, and this complaint is
hereby dismissed.
Unreasonable variation of the Terms of Mrs. Holliday‟s Contract of Employment.
35
27. Mrs. Holliday complained in JET 1 that her hours of work set out in her contract of
employment, „have been changed… on 2 occasions or more without reasonable notice or
consultation given‟. The Tribunal has considered this matter pursuant to its powers contained
in article 86 of the Law.
28. Mrs. Holliday‟s contract of employment stated in the paragraph dealing with Hours of
Work‟ that Next could change her contracted weekly hours, „subject to genuine business
needs‟. Such change must not be unreasonably requested and is subject to consultation with,
„reasonable notice before any change takes effect‟.
29. Page 12 of the Respondent‟s Staff Handbook repeats the arrangements in paragraph 28
above and goes on to say, „You will be given notice before any change takes effect unless you
are happy to start the new working arrangements straight away.‟
30. There are two memoranda to Mrs. Holliday‟s contract of employment, both changing her
working hours / days worked. One is dated and signed by the Respondent and Mrs. Holliday
on 17th May 2004 with the new working hours having effect from 16th May 2004, and the other
is dated 25th April 2005 and signed by the same parties. It seems to the Tribunal from these
documents that indeed very little notice of the change in contracted hours has been given to
Mrs. Holliday.
31. Mr. Smith said in evidence that he had never known Next issue a note confirming new
working hours unless such change had already been agreed by the employee following a
consultation process. This was Next‟s policy in these matters.
32. In the absence of evidence from Mrs. Holliday to the contrary, the Tribunal has no choice
but to accept that the letters changing Mrs. Holliday‟s working days and times were issued
and signed by her following consultation by Next. Accordingly this area of claim is dismissed
by the Tribunal.
Conclusion
33. Mrs. Holliday does not succeed with any of her complaints to the Employment Tribunal
against Next Retail Limited.
36
Jersey Employment Tribunal
Case Number: 0611-202/06
Applicant: Rafal Nadstazik
Respondent: Zareba Limited t/a Blues Bar
Case Summary: Failure to provide a complete written statement of terms, failure
to provide a written statement containing particulars of changes
in the terms of employment; failure to pay holiday pay due.
Hearing on 16th April 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Mr Stewart Mourant and Mr Tim Langlois, Panel Members
Representation:
For Applicant: Ms Katarzyna Davidowska (also acted as Translator)
For Respondent: The Respondent did not appear.
Witnesses:
For Applicant: Wlodzimierz Nencki
For Respondent: None
Background
1. Mr Nadstazik was employed by the Respondent as a second chef on 23rd January 2006. He
was promoted to head chef on 5th June 2006. The Respondent decided to close its Sami Surpi
Restaurant and on the 17th October 2006 it gave Mr Nadstazik 2 weeks notice of termination of
his employment.
2. Mr Nadstazik believes that he was not given a written statement of the terms of his
employment with the Respondent and further that he is owed monies in respect of holiday
pay due to him.
Written Statement of Terms
3. The Tribunal were informed that within 3 weeks of starting employment at Blues Bar, the
Respondent provided Mr Nadstazik with a contract of employment. However this contract
incorrectly stated the starting date of Mr Nadstazik‟s employment and Mr Nadstazik asked for
another copy to be made containing the correct date. The Respondent confirmed that this
would be done but in fact up until the date he left the Blues Bar no contract was made
available to him.
4. The Tribunal heard evidence from Mr Nencki that he was employed at the same time as Mr
Nadstazik and that the contract he was issued within a few weeks of starting employment also
contained the wrong start date. Mr Nencki produced a copy of this contract to the Tribunal. Mr
Nadstazik confirmed that Mr Nencki‟s contract was exactly the same as the one presented to
him apart from the references to salary and hours of work. Mr Nencki also asked for a new
contract to be supplied to him showing the correct starting date of his employment but this
was not forthcoming at any point during his employment.
5. The Respondent attached a Contract of Employment to their Form JET 2 which purportedly
was issued to Mr Nadstazik. This contract is signed by the Respondent and dated 23rd January
2006. However Mr Nadstazik said that he had never received this contract and in any event it
was incorrect because:
(a) It refers to an address which he was not living in at the date on the contract,
37
(b) It refers to a rate of pay which he did not receive until 20th March 2006.
However the contract did contain his correct starting date of employment – the 23rd January
2006. Mr Nadstazik considers that this contract was put together by the Respondents in
response to his application to the Tribunal.
6. Article 3 (1) of the Employment (Jersey) Law 2003 („the Law‟) requires an employer to give
an employee a written statement of the terms of their employment within 4 weeks of that
employee beginning work. Article 3(2) of the Law contains a list of particulars that such
written statement must contain. The Tribunal notes that article 3(2) (b) requires the start date
to be confirmed and article 3(2) (g) (vi) states that details of any disciplinary or grievance
procedures must be included in the contract. Neither the contract provided to Mr Nencki nor
the contract attached to Form JET 2 contain a reference to such procedures, even to say that
there are none in force. Both contracts also refer to legislation which was repealed when the
Law came into force on 1st July 2005.
7. The Tribunal were also informed that when Mr Nadstazik became the Chef of the
restaurant on 5th June 2006 he not only received a new job title of Chef, but also a pay rise to
£420 per week. However neither of these changes in the terms of Mr Nadstazik‟s employment
were notified in writing to him, as required by Article 4 of the Law.
Decision
8. The Tribunal finds that the Respondent is in breach of the provisions of Article 3 of the Law
for failure to supply a complete and correct written statement of the terms of Mr Nadstazik‟s
employment.
9. The Tribunal finds that the Respondent is in breach of the provisions of Article 4 of the Law
for failure to provide a written statement of the changes in Mr Nadstazik‟s employment
following his promotion to Head Chef.
10. By Article 9 of the Law an employer who is breach of the Law shall be guilty of an offence
which is punishable by a fine not exceeding £5,000. The Tribunal HEREBY FINES the
Respondent as follows:
 In respect of the Respondent‟s breach of Article 3 of the Law -- £300
 In respect of the Respondent‟s breach of Article 4 of the Law -- £300
Holiday Pay Due
11. Mr Nadstazik was informed that he would receive 1 day off for each month he worked.
This is confirmed in both the contract issued to Mr Nencki (of which Mr Nadstazik says in
evidence that he had received a version, see paragraph 4 above), and the copy contract attached
by the Respondent to Form JET 2.
12. Mr Nencki gave evidence to the Tribunal that during the 5 months he and Mr Nadstazik
worked together, to 31st May 2006, Mr Nadstazik did not take a day off.
13. Ms Davidowska presented evidence on behalf of Mr Nadstazik that from 31st May 2006 to
the date of termination of the contract, 31st October 2006, Mr Nadstazik did not take a day off.
She said that sometimes Mr Nadstazik was told by the Blues Bar management not to come in
on a particular day because the kitchen was being used by another chef for a particular
purpose, but such days were never suggested or sought by Mr Nadstazik .
14. The Tribunal noted the contents of a schedule prepared by the Respondent and attached to
Form JET 2 purportedly setting out Mr Nadstazik‟s holiday dates. The Tribunal noted a
discrepancy in this schedule in that it says that Mr Nadstazik took 6 days holiday in the week
commencing 3rd April 2006. However Mr Nadstazik‟s wage slip for that week, produced to the
38
Tribunal, awards him pay for overtime worked, which he could not have done if he was on
holiday.
15. Ms Davidowska said that the 11 half days holiday listed in the schedule by the Respondent
as being taken by Mr Nadstazik are in fact completely random dates, and Mr Nadstazik did
not take any leave during the period stated. By arrangement Mr Nadstazik would have a half
day holiday on a Monday every other week, but this did not count towards his holiday
entitlement. The Tribunal notes that some of the dates recorded by the Respondent do fall on
a Monday, but no evidence was heard or received from the Respondent regarding the nature
of these half day holidays.
Decision
16. The Tribunal are required to evaluate the evidence before it on the balance of probabilities
only. The Tribunal believed Mr Nadstazik‟s evidence that some days he was told not to come
into work. It also believed Mr Nencki‟s evidence that Mr Nadstazik did not take a day off
between 23rd January 2006 and 31st May 2006. The Tribunal can also see from Mr Nadstazik‟s
wage slips that he must have worked the week of the 3rd April 2006 because he received
payment for overtime with his wages. Accordingly in the absence of evidence from the
Respondent it is going to disregard all of the half day holidays purportedly taken by Mr
Nadstazik and recorded by the Respondent on the Schedule attached to their Form JET 2.
17. Mr Nadstazik worked for the Respondent for 9 months, and in accordance with his terms
of employment he is due to receive 9 days holiday. The Tribunal also heard from Mr
Nadstazik that he worked on 17th April 2006, which was Easter Monday and did not receive a
paid day off or an extra day‟s pay. Again no evidence was offered or received from the
Respondents on this point. The Tribunal have decided to add this day to Mr Nadstazik total of
holidays, bringing him to 10 days holiday.
18. Mr Nadstazik was paid £420 per week gross for a 6 day week. This is £70 per day.
Accordingly Mr Nadstazik „ holiday pay due to him is;-
£70 per day x 10 days holiday = £700
19. Pursuant to Article 14 of the Law the Tribunal AWARDS the sum of £700 to Mr. Nadstazik
by way of compensation for leave due to him.
Schedule of Fines & Awards.
Fines
For Breach of Article 3 £300
For Beach of Article 4 £300
Total Fines £600
Awards
Pursuant to Article 14 £700
39
Jersey Employment Tribunal
Case Number: 0910-169/06
Applicant: Mrs Susan Parker
Respondent: St George‟s Preparatory School Limited
Case Summary: Unfair dismissal by way of selection for redundancy; reasonable
band of responses.
Hearing on 19th March 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Mrs M Curtis and Mr W McPhee, Panel Members
Representation:
For Applicant: Mr Mathew Cook, Mourants
For Respondent: Advocate Paul Nicholls, Walkers
Witnesses:
For Applicant: None
For Respondent: Mr Colin Moore, Headmaster
Mrs Jane Kiddie,
Mrs Margaret Faichnie,
Mr Colin Huelin, Bursar
The Facts.
1. Mrs Parker was employed as a teacher at St George‟s Preparatory School („the School‟)
between 1st September 1999 and 31st August 2006. During that period Mrs Parker worked as a
form teacher of various year groups as required by the pupil numbers. Mainly however, she
worked as a Year 3 tutor. In addition Mrs Parker took over the role of Literacy Coordinator in
May 2001, which involved setting up the scheme in the School. Mrs Parker continued in this
role, apparently successfully, until October 2005 when she resigned due to a difference of
opinion with the Headmaster, Mr Colin Moore („Mr Moore‟). The Scheme continues in use by
the School.
2. The Tribunal heard evidence from Mr Moore that the School‟s income is generated largely
from fees it receives from the parents of the children at the school. The School is an
independent school. By far its largest expense is the cost of its staff. Mr Moore said that in his
experience it is unusual for the existence of a school to be so „finely balanced‟ between the
number of pupils and their needs and thus the fees generated and the numbers and cost of
staff. He said, „he thinks about pupil numbers all the time‟. That being said, the School is
successful and firmly established in the educational resources of the Island.
3. Mr Moore gave evidence that the ideal class size in the School is 15, with 21 as a maximum
number (in which case Teaching Assistants would be employed to assist the Form teacher to
ensure an adequate pupil : teacher ratio); year enrolments between those numbers were a
problem because the School had to balance the numbers of pupils in each class, say 10 and 9,
against the cost of employing 2 full time form teachers.
4. The Tribunal heard that from September 2005, Mr Moore had been concerned about the
number of pupils enrolled at the School. In January 2006, this was discussed quite openly at a
weekly staff meeting and Mr Moore pointed out that maintaining staffing levels was entirely
dependent upon pupil numbers – both across the school and in separate year groups. Mrs
Parker did not disagree with this evidence and said that all the staff were aware of the
potential problem with roll numbers.
40
5. Mr Moore explained to the Tribunal that by virtue of the teachers‟ contracts of employment
it is necessary to give a member of staff one term‟s notice of dismissal (and similarly members
of staff are required to give the Respondent, one term‟s notice of resignation). In addition
parents are required to give one term‟s notice of withdrawing their children from the School.
This causes difficulties in trying to plan staff requirements for pupils one term ahead. In
addition pupils could join the School at any time during the school year, which further added
to the difficulty in planning ahead. This situation meant that Mr Moore was aware that in
organising the staff for September 2006, he had to make a decision by the end of the Spring
term in 2006 in order to give a term‟s notice if required.
6. Throughout the Spring term in 2006 Mr Moore remained concerned about pupil numbers
and this was discussed amongst the Senior Management Team („SMT‟) at their weekly
meetings. It was agreed by the SMT that no decision would be made on staffing requirements
for September 2006 until after the School‟s Open Day on 23rd March 2006, as often parents
enrolled their children after visiting the School. In fact no further children were enrolled at
the School following Open Day. Accordingly at the next Staff Meeting held on 30th March
2006, Mr Moore informed the staff that pupil numbers for September 2006 did not support
staff numbers and that a full time teaching role would have to be made redundant. Mrs Parker
gave evidence that this was a real bombshell and all the staff were shocked. At that point the
School had 9 full time teachers. The Tribunal heard evidence that at that meeting Mr Moore
explained that full time staff were being considered equally on the basis of JACS guidelines
for selection criteria and that the redundancy selection would be made by a panel comprising
the SMT with Mr Huelin acting as moderator. Mr Moore asked if anyone could think of any
alternatives to the redundancy then they should come forward and discuss it. Nothing was
volunteered at the meeting by the staff although Mrs Kiddie said there was a vague discussion
of reducing hours of work but no one came forward at the meeting.
7. The Tribunal heard evidence from Mr Moore, Mr Huelin, Mrs Kiddie and Mrs Faichnie that
they and Mrs Haden as members of the SMT met to discuss the redundancy procedure. A set
of selection criteria and a scoring system had been prepared by Mr Huelin based on the JACS
guidelines of redundancy. However in the School‟s model greater emphasis was put on
performance than in the JACS model and length of service only qualified for points if there
was a tied score amongst staff. The School added its own categories of organisation,
communication and relevant skills to the selection process. It was decided that Mr Huelin
would deal with the scores on staff attendance and disciplinary records as he had access to this
information. Evidence was heard that the selection criteria was slightly changed following its
presentation to the SMT. However a decision was made by the SMT not to inform the staff of
the actual selection criteria or the length of the process because it was felt that this would be
„demoralizing‟ and „bad for morale‟ and would not affect the outcome of the decision. It was
explained to the Tribunal that Mrs Kiddie and Mrs Haden as full time members of staff asked
to be included in the pool of staff subject to the selection criteria and this was allowed
notwithstanding that both of them were members of the SMT and thus conducting the
selection process. In evidence Mrs Kiddie said that she considered the process to be
independent and fair and not hampered by the close involvement of Mrs Kiddie and Mrs
Haden as they were subject to assessment by the other members of the SMT too.
8. The SMT received the selection documents on Thursday 31st March. They were asked to fill
them in over the weekend by scoring each member of the teaching staff in the selection
categories and return them to Mr Huelin as moderator. The end of the school term was on 7th
April 2006.
9. Mr Huelin gave evidence that as moderator his role was to ensure that all members of the
selection panel were clear as to the criteria to be used and how to rate that criteria in order to
ensure consistency. He said that whilst there were slight variations in the marks (for example
some members of the SMT marked higher than others but on a consistent basis) there was no
cause for concern in the way the exercise had been conducted. He noted that Mrs Parker
received the lowest score from each member of the SMT.
41
10. On the 6th April 2006, in the middle of a teaching day, Mrs Parker was called in to see Mr
Moore and informed that she had been selected for redundancy. Mrs Kiddie was in
attendance. Mrs Parker received the news calmly and went back to her class. The effect from
this meeting was that Mrs Parker would be redundant from 31st August 2006, but Mr Moore
informed her that if the situation changed between now and then she would be offered an
alternative post – if it was suitable for her.
11. On the 7th April 2006, Mrs McKimmon consulted Mr Moore about a possible job share
with Mrs Parker for a period of one year. Mrs McKimmon is a reception class teacher. It was
acknowledged by all the parties that Mrs Parker did not really like teaching in reception but
was willing to take it on for one year. Mrs McKimmon put various conditions on her offer of a
job share and these were explored by Mr Moore over the Easter break and afterwards with
both Mrs McKimmon and Mrs Parker. Unfortunately Mrs McKimmon‟s requirements could
not be satisfied by the School and on 4th May 2006, she withdrew her offer of the job share.
The Board of Directors of the School validated Mr Moore‟s decision and actions in this respect
on 16th May 2006 and the next day Mrs Parker was informed that her redundancy would
proceed.
12. On the 12th June 2006 in response to parental concerns about staff levels in the Year 1 class
(comprising 21 pupils) it was decided to appoint an additional teacher to deliver English and
Mathematics for 10 hours a week. It was decided to offer this part time post to Mrs Parker
commencing in September 2006 for one year, subject to certain conditions on pupil numbers.
Mrs Parker accepted this position and is still performing this function in the School.
13. In January 2007 another child joined Year 3 and 4 days before the February 2007 half term
another child registered to start in Year 3 immediately following the half term. Mr Moore
realised that more staff for Year 3 were required. He decided to fill the post by way of supply
staff known to the School. With Mrs Kiddie and Mrs Haden, he looked at the candidates and
whittled the list down to Mrs Parker and Mrs Moore, his wife. Mr Moore gave evidence that if
he had moved Mrs Parker from her new role as part time teacher of English and Maths in Year
1 which was settled by then, he would create a vacancy. As he only had 4 days to appoint a
member of staff before the February 2007 half term and the new contract he was creating
expired on 31st August 2007, he decided to appoint his wife, out of convenience. Mr Moore
gave evidence that his wife is well qualified for the role in the School. This was not
questioned by the Applicant.
14. Mrs Parker having taken advice from her Union in England, (the NUT, represented by the
Jersey Teachers Association in the island), decided to make a complaint of unfair dismissal to
the Employment Tribunal.
The Law
15. Article 64 of the Employment (Jersey) Law 2003 („the Law‟) requires an employer to show
the reason for the dismissal when fairness or unfairness of that dismissal is being considered.
Some reasons are considered potentially fair reasons and these are set out in Article 64 (2).
Redundancy is a potentially fair reason for dismissal. In any event an employer is required by
virtue of article 64 (4) to have acted reasonably in treating such reason as sufficient reason for
dismissal and to have acted in accordance with equity and the substantial merits of the case.
16. Articles 64 (1) (2) and (4) are set out as follows:
64 General
42
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or
unfair, it shall be for the employer to show –
(a) the reason (or, if more than one, the principal reason) for the dismissal; and
(b) that it is either a reason falling within paragraph (2) or some other substantial
reason of a kind such as to justify the dismissal of an employee holding the position
which the employee held.
(2) A reason shall fall within this paragraph if it –
(a) relates to the capability or qualifications of the employee for performing work of
the kind which he was employed by the employer to do;
(b) relates to the conduct of the employee;
(c) is that the employee was redundant; or
(d) is that the employee could not continue to work in the position which he held
without contravention, (either on his part or on that of his employer) of a duty or
restriction imposed by or under an enactment.
(3) …….
(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the
question whether the dismissal is fair or unfair (having regard to the reason shown by the
employer) shall –
(a) depend on whether in the circumstances (including the size and administrative
resources of the employer‟s undertaking) the employer acted reasonably or unreasonably
in treating it as a sufficient reason for dismissing the employee; and
(b) be determined in accordance with equity and the substantial merits of the case.
(5) …..
17. Article 64 (5) refers to situations which are considered by the Law to be automatically
unfair dismissals, and they do not apply in this case.
18. Mr Cook, on behalf of the Applicant submitted that redundancy was not the real reason for
Mrs Parker‟s dismissal but that instead it was based on a biased view of her conduct within
the School.
19. Article 2 (1) of the Law defines Redundancy as follows:
Redundancy
(1) For the purposes of this Law an employee who is dismissed shall be taken to be dismissed
by reason of redundancy if the dismissal is wholly or mainly attributable to –
(a) the fact that his employer has ceased or intends to cease –
(i) to carry on the business for the purposes of which the employee was employed by
him, or
(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business –
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the
employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.
20. The Tribunal heard evidence from Mr Moore in his capacity as Headmaster of the School
that due to falling pupil rolls he was concerned that there would not be sufficient pupils in the
School in the academic year of 2006/2007 to warrant the level of staffing existing in the
2005/2006 school year. The Tribunal considers that as Headmaster, Mr Moore‟s position is
analogous to that of Managing Director of a business – it is his job to get the projections and
figures right so the school performs well for its pupils whilst staying profitable. In the
absence of a clearly erroneous or vexatious decision the Tribunal is not going to comment
upon such considerations.
43
21. Mr Moore clearly believed in accordance with Article 2(1) of the Law that, „the requirements
of [the School]… for employees to carry out work of a particular kind [teaching a particular year
group]… are expected to cease or diminish [in the 2006/2007 school year].
22. Some evidence was heard from both Mrs Parker and Mr Moore about disagreements they
had had in their time together and the conduct of criticisms of Mrs Parker‟s conduct in School
by Mr Moore but such evidence was not extraordinary and in the circumstances the Tribunal
finds that the reasons Mrs Parker was dismissed was because of the redundancy of a teaching
post in the School.
23. As stated in paragraph 15 above, redundancy is a potentially fair reason for dismissal.
Accordingly the Tribunal has considered whether the Respondent acted reasonably or not in
treating redundancy as being sufficient reason for dismissal and by looking at the equity and
substantial merits of the case.
24. The Tribunal are going to follow the views of the Deputy Bailiff in Voisin v Brown [2007]
JRC47 para 28, where he states as follows;
„Where … an employer declares an employee redundant and fails to warn or consult him in
accordance with the procedural requirements summarised by Lord Bridge (in Polkey v A.E.
Dayton Services Ltd [1988] AC 344] and adopted in [Goguelin v Stuart Banks (Carpenters &
Builders) Limited 2006 JET], it is not open to the Tribunal to hold without more ado that, as a
result of such failure, the dismissal was unfair. Nor is it permissible for the members of the
Tribunal to ask themselves whether they consider that the failure to warn or consult in the
particular circumstances was wrong and to conclude therefore that the dismissal was unfair. To
hold such a dismissal to be unfair on such a basis is to fail to adopt the band of reasonableness
test and would be an error of law… The Tribunal must therefore concentrate not on whether the
employer‟s decision or the procedure was adopted by him was wrong but on whether it was so
wrong as to fall outside the band of reasonable actions on the part of a reasonable employer.‟
25. To summarise, this Tribunal has considered each of these aspects in looking at the facts of
this case –
(i) The extent of consultation with the employees
(ii) The amount of warning of redundancy given
(iii) The establishment of fair criteria for selection of employees for redundancy
(iv) The exploration of alternatives to redundancy
(v) Whether the actions of the Respondent were those of a reasonable employer
acting within the band of reasonable responses to the situation presented to it.
The Tribunal has considered each of these points in turn in the context of this case.
The issues of warning and consultation
26. It was clear from the evidence heard from all the witnesses (including the Applicant) that
the falling pupil rolls in the School was an issue that all staff were aware of to some extent
during the 2006 Spring Term. The Headmaster highlighted his concern at the 9th January 2006
staff meeting and seems to have regularly addressed it at SMT meetings. However despite this
concern there was no more direct communication with the general staff of the problem and its
implications until 30th March 2006, when Mr Moore announced that a full time member of
staff would have to be made redundant. The Tribunal accepts that the staff at the School were
fully aware of the budgetary balance between pupil numbers and staffing requirements but
those not in management can be expected to leave such matters to the managers and thus not
be concerned with the actual reality of the situation. Whilst the SMT were continually aware
of the seriousness of the problem the general staff were not. The Tribunal finds that Mr
Moore, between 9th January and 30th March 2006 should have reminded the staff of the
implications of the falling roll numbers. However the Tribunal can also see that such warning
could have a detrimental effect on morale amongst the staff.
44
27. The Tribunal is troubled with the lack of consultation about the selection criteria between
the SMT (including the headmaster) and the rest of the staff. Mr Moore said in evidence that
he delayed making a decision about a redundancy until after the Open Day on 23rd March 2006
in case a few more pupils enrolled which would have allowed him to review the entire picture.
When no new enrolments were forthcoming, the decision to make a full time member of staff
redundant was made. Mr Moore describes this as a „difficult decision‟. The staff were
informed at a staff meeting on 30th March 2006, a week later. Mr Moore knew that he had to
give a term‟s notice to the member of staff chosen of their redundancy. The end of term was 7th
April 2006, just over a week later. This is an extremely short and tight timetable in which to
warn, consult and select someone for redundancy and is at the root of the Tribunal‟s
difficulties with this case.
28. It appeared from evidence heard that Mr Moore and Mr Huelin had already established the
selection criteria for redundancy based on the JACS model. This is discussed more fully in
paragraphs 33 & 34 below. This criteria was presented to the SMT at a meeting held on 31st
March 2006, tweaked by them slightly, and then completed. The Tribunal notes that at no time
did Mr Moore in his capacity as Headmaster:
(a) Give a copy of the selection criteria forms given to the SMT to the general staff
so that they would be aware of the basis of the assessment against them, and / or
(b) Send a memorandum to the staff informing them of the selection criteria and
the method of selection, and / or
(c) Ask the staff for any representations about the selection criteria or method of
selection, and / or
(d) Inform the staff of any right of appeal from the selection, once made, or
(e) Meet the 7 members of staff (not in the SMT) affected by this procedure,
individually to discuss the selection procedure / general situation with them.
This could have occurred at any point until Mrs Parker‟s selection on 6th April 2006.
29. The Tribunal accepts that in order to hit the end of term deadline, so that one term‟s notice
could be given to the relevant member of staff, that time was short, but the opportunity for
staff to respond could also have been short in the circumstances: the staff could have been
given the weekend, for example to consider the selection criteria with the Headmaster
absorbing any comments and issuing the final version of the selection criteria to the SMT on
the Tuesday; after all he did not inform Mrs Parker of her selection until Thursday 6th April
2006. In addition an appeal procedure could have been conducted during the Summer Term as
it would not have affected the date of notice to Mrs Parker.
30. The Respondent‟s staff handbook which is issued to each member of staff, contains a
disciplinary procedure, which if resulting in dismissal, may lead to an appeal. A redundancy
is a dismissal but no appeal was offered to Mrs Parker in accordance with the School‟s own
terms and conditions. However, it must be said that neither Mrs Parker, nor subsequently her
union representative asked to use this appeal process. Mr Moore said that no appeal was
offered because he could not see the point of it.
31. The failure in communications about this matter also extends beyond selection in that the
Tribunal heard that Mrs Parker informed the staff that she had been selected for redundancy;
Mr Moore does not appear to have officially told the staff that the selection process had been
completed. Furthermore, Mr Moore did not inform Mrs Parker of the reasons for her selection
over other staff. Mrs Parker gave evidence that she learned of the reasons for her selection on
receiving the Respondent‟s bundle containing the SMT Selection criteria and score sheet.
However Mrs Parker did not ask what those reasons were either, apart from wondering
whether it was because she had given up the Literacy Coordinator position. Perhaps because
there was no appeal offered an opportunity simply never arose. Mr Moore said in evidence
that Mrs Parker was quiet and unreactive on being informed of her redundancy on 6th April
2006, which he seems to have taken as acquiescence. To be informed that one is losing one‟s
job in the middle of a working day is a huge shock. Mr Moore does not appear to have acted
with any sensitivity in this regard and it is at this point that the Tribunal would have expected
45
an employer to take control of the situation and inform an employee of the right of appeal and
ask for suggestions on redeployment etc. This simply did not happen in this case.
The Selection Criteria
32. The Selection Criteria adopted by the Respondent is based on those contained in the
„Model Security of Employment and Redundancy Policy‟ issued by JACS. Basically it suggests
that certain selection criteria be adopted and points be awarded to candidates for redundancy
based on the relevant factors within each criteria, so that finally a rank order of candidates is
produced. The JACS selection criteria are these:
 Length of Service (max 10 points)
 Disciplinary Record (max 5 points)
 Attendance records
- occasions – (max 5 points)
- days – (max 5 points)
 Performance (max 10 points)
33. The School took this model and amended it so that it‟s criteria and scoring was as follows:
 Disciplinary Record (max 5 points)
 Attendance records
- occasions – (max 5 points)
- days – (max 5 points)
 Performance (max 30 points)
 Other considerations
- Organisation (max 5 points)
- Communications (max 5 points)
- Relevant skills (max 5 points)
 Length of Service
„This should not play a significant part in the process and may only have a bearing when all
other factors are equal.‟
34. Mr Moore defended the School‟s criteria and said that the JACS model was only a
guideline and he had adapted it to suit his business – that of running a successful school. Mr
Moore said that he had emphasised performance and effectively taken length of service out of
the equation because he wanted to keep the best members of staff and that in his opinion
teaching skills and length of service do not always complement each other. As Headmaster Mr
Moore believed that he must deliver the best possible service for the children and their
parents – he firmly believed that performance counted heavily in this review of staff.
35. The Tribunal are concerned that in the School‟s selection process two of the assessors were
also potential candidates for redundancy. This must produce a conflict of interest, although
Mrs Kiddie, in her evidence was very clear that it did not simply because she was aware of the
dangers of it arising. Also there appears to be an inconsistency in the process which was
highlighted in the evidence of Mr Moore and Mrs Kiddie. Mr Moore said he did not use the
conclusions of his classroom assessment of Mrs Parker (conducted on 28th March 2006) when
conducting his selection process but Mrs Kiddie said that she marked all those members of
staff which she had never observed teaching, equally. Evidence was heard that Mr Moore sat
in on his staff‟s lessons to evaluate their performance either on a formal or informal basis on a
fairly irregular basis but as a rough means of staff appraisal, and Mrs Parker was concerned
that he had not sat in on one of her lessons at all until 28th March 2006. The Tribunal is
concerned that this evaluation was conducted so close to the decision to make a member of
staff redundant, but it was informed by Mr Moore that it was entirely co-incidental – a week‟s
notice had been given to Mrs Parker of his intention to sit in on her lesson, and thus prior to
Open Day.
An obligation to consider alternatives
46
36. The Tribunal considers it very important that alternatives to redundancy are fully
discussed and considered by the parties involved. As a point of practice the Tribunal would
like to see the management team take the lead in this initiative whilst listening to suggestions
from the employee‟s involved. In this case Mr Moore specifically mentioned it at the staff
meeting of 30th March 2006 and there appears to have been a short discussion about reducing
hours which came to nothing. Mr Moore maintained that his door is always open and he‟s
„always speaking to staff‟. Indeed he received Mrs McKimmon‟s idea of a job share on the last
day of term and does appear to have endeavoured to develop it. The Tribunal notes that it was
Mrs McKimmon who pulled out of the arrangement because certain fundamental issues about
her salary and future security in the school could not be satisfied, on what appear to be
perfectly reasonable grounds applied without difference to this case. Mr Moore does not
appear to have asked Mrs Parker directly about her thoughts on alternatives to her redundancy
but similarly, Mrs Parker does not appear to have offered any.
37. The new appointment of a further Form Tutor to Year 3 in the Spring Term of 2007 does
appear to have caused the School some difficulty: Mrs Parker was after all a former Year 3
teacher. However, Mr Moore had less than a week to make his decision to appoint a member
of staff to this position. Mrs Parker was established in her role as a Year 1 English and Maths
teacher and moving her would have created another position to fill just as quickly. It appears
that Mr Moore made an executive decision in the circumstances and the Tribunal expresses no
view on his actions.
The reasonable response
38. The Tribunal has to ask itself was the Respondent‟s decision to make Mrs Parker
redundant the reasonable response of a reasonable employer? The Respondent as a School is
personified by its Headmaster, Mr Moore. The witnesses heard by the Tribunal were all
members of the Staff of the School, currently or recently retired, and all seemed content in
their work at the School. The Tribunal thus assumes Mr Moore to be a reasonable employer.
39. As mentioned in paragraph 27 above the fundamental difficulty with this case has always
been the very short time scale afforded to the redundancy process. This was caused by the
delay in making the final decision on the need for a redundancy until after the Open Day and
the need to give a full term‟s notice to the member of staff concerned (a standard term of
employment for teachers). The whole redundancy process took only one week. This time
frame has impacted on the warning and consultation stages of redundancy. It has also affected
to some extent the establishment of the selection criteria, for example with more time, JACS
should have been asked to comment on the amended selection criteria and the content of the
selection panel: they could even have been asked to assist in the process. The Tribunal does
find that Mr Moore failed to communicate fully with his staff during this time – even with the
short window available, he should have endeavoured at least to speak to each member
individually to appraise them of the process. The School has a very small staff.
40. The Selection process troubles the Tribunal. There has to have been an amount of
subjectivity by the assessors, and they must have been influenced by other people‟s opinions
in making their decisions no matter how hard they endeavoured to be fair. However, in the
time frame available who else was available to be an assessor? In any event who else apart
from members of the SMT could have made the Selection. Even if those members of the SMT
subject to the selection process (Mrs Kiddie and Mrs Haden) had been left out, the process
would have been conducted by Mr Moore and Mrs Faichnie (an experienced but part time
member of staff), with assistance from Mr Huelin, and thus open to criticism that the selection
panel was too narrow.
41. The fact that the School made it‟s own selection criteria based on the needs of its business
is entirely accepted by the Tribunal – teaching is of course a performance related profession
and no one would want to see a poor teacher kept on in preference to a gifted, inspirational
teacher just because of length of service. However, length of service and the loyalty and
47
expectation attached to it should not be ignored and the School was wrong to sideline it in the
manner in which it did. This point has caused considerable concern within the Tribunal.
42. The Tribunal finds that the School did all that it could to explore alternatives to Mrs
Parker‟s redundancy and reacted according to the circumstances and choices presented to it in
a not unreasonable manner.
Decision
43. The Tribunal considers that this case turns entirely on its own facts. The very short time
scale resulted in particular decisions being made in a particular set of circumstances. The
boundaries of reasonableness have been pushed in this case, in particular by the formulation
of the selection criteria and the failure to offer an appeal procedure to Mrs Parker. However, a
school is a business in that it must operate within budgets and deadlines whilst performing
well for its users – the pupils, and to some extent the parents too. The redundancy process
could have been started earlier but this would have caused alarm amongst the staff and
perhaps unnecessarily if, as experience showed, further parents had come forward to enrol
their children after Open Day. This is a small School with a small tight knit staff. The
Tribunal believes that the Headmaster endeavoured to act in the best interests of his pupils
and staff at all times and thus this system of redundancy, whilst not perfect was not outside
the band of reasonable responses by a reasonable employer to the need to make a member of
staff redundant in these circumstances. Accordingly the Tribunal finds that Mrs Parker was
not unfairly dismissed.
48
Jersey Employment Tribunal
DIRECTIONS HEARING 2
Case Number: 0211198/06
Applicant: Miss Helen Bergin
Respondent: States of Jersey, Department of Health & Social Services
Hearing on 21st March 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Mr. P Woodward and Mr. J McCartan, Panel Members
Representation:
For Applicant: The Applicant represented herself
For Respondent: Mrs Melanie Grandfield, HR Manager
Mrs Val Howard, Manager of Specialist Needs within the Department
of Health & Social Services.
Witnesses:
For Applicant: None
For Respondent: None
The Facts
1. The Applicant was engaged by the Respondent on 2nd March 2004 to be a „Bank Nurse
(Temp)‟ at the Le Geyt Centre which is part of the Learning Disabilities Service offered by the
Respondent.
2. The arrangements between the parties are set out in a letter from the Learning Disabilities
Service dated 10th March 2004 („the Letter‟). The letter sets out Miss Bergin‟s rate of pay,
method of payment, confidentiality obligations and also contains the following provision:
„I must point out that although you are registered as being available for work on the „BANK‟ this
does not mean that we can always offer you work, as this depends upon the needs of the service.
This is not classed as a permanent or part time post‟.
3. Mrs Grandfield explained to the Tribunal that persons registered with the „Bank‟ form a
pool of labour for the Respondent to call upon to cover periods of time in a particular
department where there is a demand for temporary cover, perhaps due to an increase in work
or sickness in that department. She stated that persons registered with the „Bank‟ are issued
with a „zero hours contract‟ in the form of the Letter. This arrangement is used in order to
employ people in a flexible manner: the Respondent has no obligation to offer work to the
Bank personnel, and such persons have no obligation to accept any work that is in fact offered,
if it does not suit them to work at that particular time.
4. Miss Bergin acknowledged to the Tribunal that she fully understood the system of ‟Bank‟
work operated by the Respondent.
5. Miss Bergin accepted the role of Bank Nurse (Temp) as described in the Letter and worked
at the Le Geyt Centre from 2nd March 2004 to 27th October 2006.
6. The Tribunal were informed that Miss Bergin worked during the regular hours that the Le
Geyt Centre was open, starting at 8.30am or 9.00am as appropriate and finishing at 3.30pm as
set by her Team Leader. Miss Bergin described how she would come into work every week –
49
no one told her not to come in to work or confirmed if she was available for work in the
following week. This was disputed by Mrs Howard who said the Team Leader would have to
enquire about her availability in order to forward plan, but Miss Bergin was definite that she
never met her Team Leader to discuss these matters. At the beginning of her time at the Le
Geyt Centre, Miss Bergin would take a day off at short notice as it suited her but she was
informed in March 2005 that this was causing inconvenience so Miss Bergin began to fill in a
form with her holidays on it, giving about a month‟s warning just like all the members of staff
at the Centre. Miss Bergin also informed the Tribunal that she adopted the practice allowed by
the „Nurses and Midwives Handbook‟ that if she worked for 12 weeks straight through she
would receive a week‟s paid leave in the 13th week. No one objected to Miss Bergin following
this system. Miss Bergin‟s holidays or days off were recorded on the staff holiday chart at the
Centre. Miss Bergin confirmed that she was aware that there were no restrictions on the
amount of holiday she could take in her role as a Bank Nurse.
7. The Tribunal were informed that in her working day Miss Bergin undertook the tasks set
for her by her key worker (as all support staff would do). She worked as a member of the team
at the Centre and nothing marked her out in her daily work from the permanent members of
staff.
8. Mrs Howard informed the Tribunal that when Miss Bergin was recruited to the Bank staff
there was a freeze on recruitment within Health & Social Services but in late 2005 there was a
change of leadership at the Department and the freeze was lifted. This meant that fixed term
contract staff and permanent staff were actively recruited and by May 2006 people were being
interviewed for these positions. Miss Bergin was asked to put herself forward for interview
but refused.
9. At the end of May 2006 Miss Bergin was informed by the Manager of the Le Geyt Centre
that as of the 14th July 2006, Bank staff would no longer be required by the Centre. This date
came and went and Miss Bergin carried on with her work and hours in the usual way and
nothing more was said about her not working at the Centre. Miss Bergin queried her position
with the new manager of the Centre on 8th August 2006 who said she would investigate and
get back to her. On 22nd September 2006 Miss Bergin was advised that as of the 21st December
2006 she would not be required to work at the Centre. Subsequently Miss Bergin decided that
henceforth she would not to work on Mondays and this wish was accommodated by the
Manager of the Centre with immediate effect. Miss Bergin was informed on the 13th October
2006 that in fact her services would no longer be required from 27th October 2006 and Miss
Bergin did finish on that date.
10. The Tribunal has noted that the only significant gaps in Miss Bergin‟s employment (apart
from planned holidays or days off) were between 22nd December 2004 and 10th January 2005,
and 20th December 2005 and 5th January 2006, being periods when the Centre was closed for
the Christmas break. Mrs Howard informed the Tribunal that parts of the Centre were in fact
open during this period and it was Miss Bergin who indicated when she was coming back to
work. Miss Bergin said in evidence that she stopped work and then returned to work on the
dates her key worker directed her to follow. Miss Bergin confirmed that unless a week of the
Christmas break was also a „13th week‟ (see Paragraph 6 above), she did not receive any pay
from the Respondent for the time she did not work. This applied to all the time off that she
took.
11. On finishing work at the Le Geyt Centre Miss Bergin felt that she had been unfairly
treated and sought advice from JACS regarding her position. JACS advised her that based on
the period of her continuous service to the Respondent, she could bring a claim of unfair
dismissal. Miss Bergin lodged Form JET 1 with the Tribunal office on 2nd November 2006.
12. On 1st March 2007 the Tribunal heard an application from the Respondent that Miss
Bergin‟s claim be struck out because it is in the nature of Bank nursing contracts that they are
temporary and accordingly no rights of unfair dismissal can arise.
50
13. At the hearing of 1st March 2007 the Tribunal decided that from the terms of the Letter,
there is clearly no obligation on the Respondent to provide work nor is there any obligation
on Miss Bergin to undertake any work offered. This means that there is none of the mutuality
in the obligations of the parties which is necessary to create a contract of service. Accordingly
the Tribunal decided that the Letter does not form a contract of employment between the
parties. However, when Miss Bergin accepted the Respondent‟s offer of work at the Le Geyt
Centre an obligation arose for Miss Bergin to perform the services required of her. At this
point the Tribunal decided a contractual relationship did arise between the parties. The next
stage for the Tribunal to consider was whether this contractual relationship existed pursuant
to the terms of the Letter or was a new contract with implied, not express (written) terms. The
Tribunal also needed to consider whether such contract was a contract of service (such as to
render Miss Bergin an employee) or a contract for service (where Miss Bergin retained her
independence in the relationship). The Tribunal decided that the element of control in the
Respondent‟s relationship with Miss Bergin was crucial to its decision as was the intention of
the parties in making the original contract, and decided to adjourn the hearing to 21st March
2007 in order to hear more evidence on these points.
The Issues in this case
14. It has been necessary for the Tribunal to determine the following issues:
a) Whether the contractual relationship which arose between the Respondent and Miss
Bergin at the time of her acceptance of an offer of work at Le Geyt Centre existed
pursuant to the terms of the Letter or was a new contract with implied, not express
(written) terms;
b) Whether Miss Bergin worked at the Le Geyt Centre under one continuing contract or a
series of fixed term contracts; and
c) Whether such contract or contracts were of service (such as to render Miss Bergin an
employee) or for service (where Miss Bergin retained her independence in the
relationship).
15. This decision is based upon the facts heard and evidence presented to the Tribunal at the
Hearings held on 1st March and 21st March 2007 and the information contained in Forms JET 1
and JET 2 as detailed above.
Decision
16. Having considered the submissions made on these issues by each of the parties and the
facts contained in their Forms JET 1 and JET 2 respectively and having considered the law in
this area, the Tribunal finds itself divided in the result. We shall deal with each issue using
the lettering in paragraph 15 above to explain where we agree and where we differ.
17. In respect of issue (a) the Tribunal is united. It has long been established that mutuality of
obligations and control are the irreducible minimum legal requirements for the existence of a
contract of employment. On the basis of the evidence heard the Tribunal cannot find in the
Letter any obligation on the Respondent to offer work to Miss Bergin or any obligation on
Miss Bergin to accept work when it was offered. Thus there is none of the mutual obligation
required to create a contract of employment. The Letter merely sets out the practical
arrangements in the event that the Respondent did offer work which was accepted by Miss
Bergin. The Tribunal found the English authority of Carmichael v National Power plc [2000]
IRLR 43 useful in reaching its decision on this point. Accordingly the Tribunal finds that the
Letter does not form a contract of employment between the parties but that once Miss Bergin
accepted the offer of work by the Respondent an implied contract of employment arose
between them.
18. In respect of issue (b) the Tribunal is also united: that is whether or not Miss Bergin
entered into a series of fixed term implied contracts with the Respondent when she accepted
51
work which were punctuated by her days off or period of leave. A fixed term contract is one
for a specified period of time – it has a defined beginning and a defined end. In this case,
once the initial offer of work was made to Miss Bergin to start work at the Le Geyt Centre on
the 2nd March 2004 the parties‟ arrangements simply rolled on every week until notice was
finally given by the Respondent that there was no further work for Miss Bergin at the Centre.
There was no intention between the parties that there should be a series of fixed term
contracts punctuated by Miss Bergin‟s periods of leave. Her days off were just a part of their
ongoing contractual relationship and it would be false to impose a different construction on
this relationship. Accordingly the Tribunal finds no fixed term contracts existed in this case.
19. The third issue (c) in paragraph 15 above is the most critical issue for the Tribunal to
determine, and it is here that the Tribunal parts company. The Tribunal determined in
paragraph 17 above that an implied contract of employment arose between Miss Bergin and
the Respondent when she accepted the Respondent‟s offer of work at the Le Geyt Centre. It is
now necessary for the Tribunal to examine the reality of the parties‟ relationship in order to
identify what the terms and conditions of the implied contract were and whether they were
such as could be expected to be found in a contract describing an employer / employee
relationship or an employer / independent contractor relationship.
20. As outlined above, the Tribunal heard evidence that when Miss Bergin started at the Le
Geyt Centre, she worked in the spirit of a Bank Nurse – she worked the hours and days that
were convenient to her. However, within a year she was planning her absences and giving the
management of the Centre advance notice of any leave planned as requested by them.
Evidence was heard that throughout her time at the Le Geyt Centre, Miss Bergin did not
receive any paid leave, unlike other workers engaged on permanent contracts. However, Miss
Bergin adopted the Nurses and Midwives Code of Practice of working 12 straight weeks in
order to get the 13th week as paid leave. This practice is widely used by health workers and
professionals, and no one objected to Miss Bergin, as a Bank Nurse, adopting this scheme of
working too. Such a practice gave Miss Bergin in the region of 4 weeks paid leave a year.
21. Evidence was heard by the Tribunal regarding Miss Bergin‟s working routine and there is
no doubt that Miss Bergin was seen and treated as one of the team of workers at the Le Geyt
Centre throughout the period she worked there. Close questioning by the Tribunal revealed
evidence that Miss Bergin knew how to do her job and was completely familiar with the
routine of the Centre. Further, it was clear that she was expected to be working at the Centre
from week to week. Evidence was heard that she was subject to the control of her key worker
and other managers regarding the type of work she did and the manner in which it was
conducted. She was also subject to the Respondent‟s confidentiality provisions. The Tribunal
heard that the Respondent also had the power to suspend or dismiss Miss Bergin from her
work if it chose to do so.
22. There is little doubt that during the time she worked at the Le Geyt Centre, Miss Bergin
was an integral member of the team. The Respondent pointed out that during the Christmas
periods over 2005 and 2006, Miss Bergin had a longer period of leave than the time the Centre
was closed, and that other, permanent, staff members came back to work as soon as the Centre
opened. Miss Bergin‟s response to this was that she returned to work on the date directed by
her key worker and exercised no choice over these dates.
23. Details have been supplied to the Tribunal of Miss Bergin‟s work pattern in respect of her
days off. In the Tribunal‟s opinion it emerges that until mid 2006 her hours were regular.
Indeed the periods of leave taken by Miss Bergin during 2004 and 2005 were no greater than
the Tribunal would expect any full time member of staff to take. However it is also apparent
that when a finishing date was mentioned to Miss Bergin in 2006, which was subsequently
changed twice, these regular patterns began to change. The Tribunal were informed by Miss
Bergin that this was in reaction to the lack of stability in her working life and the Tribunal is
inclined to believe her.
52
24. It is also of note that throughout the period of Miss Bergin‟s employment with the
Respondent, her social security and latterly, ITIS deductions were made from her wages by
the Respondent in the same manner as it does for all its employees. Further Miss Bergin paid
social security at the employee‟s rate. At no point in her relationship with the Respondent was
she required to be responsible for her own contributions to tax or social security or assessed as
being self employed. The Tribunal has been informed by the Respondent that its independent
contractors are informed in their contracts that they are responsible for their own
contributions. It‟s also worth noting that Miss Bergin was recruited on a zero hours contract
because there was a freeze on recruitment : this was not a ruse to avoid paying tax or
contributions.
25. The Tribunal are agreed that paragraphs 20 – 24 above describe the manner in which Miss
Bergin worked at the Centre. The difficulty has been caused in deciding whether these facts
when applied to the law mean that she was employed or self employed during this time.
26. There are a number of established tests which can be applied in deciding whether an
employer/employee relationship exists. These include looking at the degree of control
exercised by the employer over the manner in which the work is to be done, or assessing
whether a person is an integral part of the business. There is also the multiple test where all
the surrounding features of the relationship are looked at and considered. The leading
authority in this area is an English case which has been applied to many situations. In Ready
Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 2
QB 497, MacKenna J, identified the criteria for determining whether a contract of employment
exists as follows:
„A contract of service exists if three conditions are fulfilled:
(i) The servant agrees that in consideration of a wage or other remuneration he will provide his
own work or skill in performance of some service for his master.
(ii) He agrees expressly or impliedly that in the performance of that service he will be subject to
the other‟s control in a sufficient degree to make the other master.
(iii) The provisions of the contract are consistent with its being a contract of service‟.
27. The Tribunal decided to take a pragmatic view and look at all the surrounding features of
the parties‟ relationship bearing in mind the conditions of service described in the Ready
Mixed Concrete case referred to in paragraph 26 above.
28. The Panel members have come to the following conclusion on the issue of whether the
implied contract which arose between the Respondent and Miss Bergin during the time she
worked at the Le Geyt Centre was a contract of employment. The Deputy Chairman disagrees
with these conclusions and sets out her views on the nature of the relationship between the
parties starting in paragraph 31 below.
29. The Panel members find on the facts of this case that Miss Bergin started her employment
with the Respondent as an independent contractor. Indeed this is what the parties always
envisaged. However within 9 months or so the Respondent was exercising control over Miss
Bergin and requesting that she keep regular hours and inform them in advance of leave
planned to be taken (consequently she filled in a holiday form like permanent members of
staff). Miss Bergin also adopted a pattern of working which gave her paid leave. Neither of
these terms was envisaged in the Letter and no one objected to their introduction into the
implied contract. In addition the Panel members found that the Respondent directed the
manner in which Miss Bergin worked each day and retained the power to suspend and
dismiss her for disciplinary matters. The Panel members also find the fact that she was
required to perform her services personally (if she was ill, she could not send a substitute to
the Centre) as another factor indicative of her employed status. Finally, the Panel members
find that the same types of deductions were made from Miss Bergin‟s salary as for all other
53
employees of the Respondent, which in their opinion further indicates that she was treated as
an employee by the Respondent. The Panel members conclude that whilst no single factor had
been conclusive, all the circumstances of Miss Bergin‟s relationship with the Respondent
indicate that within a year of her appointment to the Le Geyt Centre as a support worker she
was treated as an employee of the Respondent until the date of termination of her contract
following 2 weeks notice.
30. The Deputy Chairman of the Tribunal has a different interpretation of the facts of this case
leading to her to decide that Miss Bergin was not employed by the Respondent under a
contract for service at any time.
31. The Deputy Chairman‟s view is that when Miss Bergin started at the Le Geyt Centre she
worked in the spirit of a Bank Nurse- she worked the days that were convenient to her. It is
also clear that Miss Bergin‟s services were needed by the Respondent at the Centre because
she worked continuously - she was never laid off and recalled at any time during the period of
the implied contract. It is apparent from the facts that Miss Bergin became a member of the
staff team – she was expected to be at the Centre and to function as a permanent member of
staff. Indeed she was subject to the same disciplinary process and confidentiality provisions
as the permanent staff. However Miss Bergin never received paid leave during the term of her
contract and to get round this, Miss Bergin adopted the Nurses and Midwives code of practice
of working 12 straight weeks in order to get the 13th week as paid leave. Odd days off were not
paid leave. This is as envisaged in the Letter. Also, when Miss Bergin asked for Monday‟s off
this was immediately accommodated by the Respondent with no delay or questions. Again
this power to dictate hours of work is envisaged in the Letter.
32. Miss Bergin was undoubtedly seen as one of the team of workers at the Le Geyt Centre
during the period of her contract. However, the Deputy Chairman believes that at no point did
Miss Bergin become an employee of the Respondent because ultimately she retained control
of the relationship by being able to dictate the hours that she worked. This element of control
did not leave Miss Bergin at any point during her employment at the Centre. Miss Bergin took
paid leave because she manipulated the system and the monolith that is Health and Social
Services simply did not notice that she should actually not have been able to claim the benefit
of the Nurses and Midwives scheme of working. The fact that Miss Bergin was subject to the
Respondent‟s disciplinary and confidentiality proceedings was because she was working with
the vulnerable persons that use the Le Geyt Centre, and the Respondent needed to ensure
control for the security of its users. In the Deputy Chairman‟s opinion, it is not unreasonable
for all employees engaged at the Centre to be treated the same in this regard whatever their
status. The payment of employee rated social security contributions is not conclusive and
again is down to the Respondent‟s administrative error and not because Miss Bergin was in
fact considered an employee by the manager of the Le Geyt Centre or anyone else within the
Respondent‟s organisation.
33. The Deputy Chairman is also mindful of the fact that when the Letter was entered into
neither party intended to create a contract for service, whether implied or not. The Letter is
quite explicit that Miss Bergin should provide services to the Respondent when called upon to
do so but subject to her own convenience. It is clear from the facts that this element of control
did not leave Miss Bergin at any point. Miss Bergin was free to dictate the hours of her
employment (which is why no one noticed the 13th week being regularly taken as paid leave)
but chose not to do so until the need arose – when she said she no longer wished to work on
Monday‟s. The power to dictate hours of work is simply not vested in employees. The
Tribunal heard evidence that Miss Bergin also worked as a carer for other organisations such
as Cheshire Homes, and this indicates that she was indeed in business „on her own‟ and the
Respondent was simply one of the organisations she was willing to assist.
Conclusion
34. The majority view prevails. Accordingly the original application of the Respondent, that
Miss Bergin‟s application to the Tribunal be struck out on the basis that it is misconceived;
54
does not succeed. As an employee subject to an implied contract of service of more than 26
weeks duration, Miss Bergin is entitled to make a complaint of unfair dismissal to the
Tribunal pursuant to article 76 of the Law.
55
Jersey Employment Tribunal
INTERIM HEARING - ORDERS
Case Number: 1409-146 / 06
Applicant: Miss Justyna Lech
Respondent: Luminar (Jersey) Limited t/a Liquid
Hearing on 16 April 2007
Before: Mrs N Santos-Costa, Deputy Chairman
1. On the 14th September 2006 the Applicant filed a JET 1 with the Employment Tribunal
claiming that the Respondent owed her £129 in unpaid wages plus accrued holiday pay.
2. On the 30th October 2006, the Respondent informed the Tribunal office that the net sum of
£49.57 had been paid to the Applicant‟s bank account on 20th October 2006 by way of payment
of outstanding monies claimed.
3. On the 22nd November 2006 JACS informed the Employment Tribunal that they had been
unable to establish whether due payment of the Applicant‟s claim had been made as the
Applicant was not responding to contact by JACS by email or letter to the addresses they had
on file. JACS reconfirmed their inability to contact the Applicant by email to the Tribunal
dated 13th December 2006.
4. On the14th December 2006 the Employment Tribunal Secretary attempted to contact the
Applicant on the email address provided to him in order to verify whether her claim against
the Respondent had been settled in full. The Tribunal Secretary did not receive a response to
this email or a similar one sent on the 24th January 2007. On the 25th January 2007 the Tribunal
Secretary wrote to the Applicant at the address given on her JET 1 asking her to confirm by the
12th February 2007 whether she had been paid in full, failing which he would take steps to
close the file in respect of her application.
5. No communication has been received from the Applicant in response to any of the attempts
detailed above to contact her in this matter.
IT IS HEREBY ORDERED as follows
THAT:
6. The Applicant is required to lodge with the Employment Tribunal further and better
particulars of her claim against the Respondent or written confirmation that her claim against
the Respondent has been settled in full, by 4.00pm on Monday 14th May 2007.
7. In the event that the Applicant is unable to comply with the ORDER contained in paragraph
6 above for any reason or to any extent, she is to contact the Employment Tribunal by 4.00pm
on Monday 14th May 2007. and explain her reason or difficulties so that the Tribunal may
consider an alternative means of obtaining the information necessary to progress this
application.
8. In the event that the Applicant does not comply with the ORDERS contained in paragraphs
6 & 7 above, the Tribunal will adjourn this matter for a further period of ONE week, to
Monday 21st May 2007 and UNLESS the Applicant has complied with the said ORDERS by
4.00pm on such date, the Tribunal will strike out the Applicant‟s complaint to the Tribunal
without further notice to the Applicant.
Jersey Employment Tribunal
56
STRIKE OUT ORDER
Case Number: 1409-146 / 06
Applicant: Miss Justyna Lech
Respondent: Luminar (Jersey) Limited t/a Liquid
Hearing on 16 April 2007
Before: Mrs N Santos-Costa, Deputy Chairman
ORDER
1. On the 16th April 2007 the Deputy Chairman issued an ORDER that unless a response was
received from the Applicant to orders made by the Jersey Employment Tribunal regarding the
progress of her application, by 4.00pm on Monday 21st May 2007; the Tribunal would strike
out the Applicant‟s complaint to the Tribunal without further notice. No communication has
been received from the Applicant by the Tribunal. Accordingly IT IS HEREBY ORDERED that
the application of MISS JUSTYNA LECH against LUMINAR (JERSEY) LIMITED t/a Liquid
Night Club and dated 14th September 2006 is HEREBY STRUCK OUT.
57
Jersey Employment Tribunal
Case Number: 2310184/06
Applicant: Mr Paulo De Caires
Respondent: Mr Isac Pestana t/a the Al Forno Restaurant
Case Summary: Payment of wages, notice pay, holiday pay, written statement of
terms, written itemised pay statement, burden of proof.
Hearing on 7th June 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman
Mr A Hall (Panel Member in attendance)
Representation:
For Applicant: Mr Paulo de Caires represented himself through an Interpreter.
For Respondent: Mr Pestana represented himself
Witnesses:
For Applicant: None
For Respondent: Miss Magdelena Czeck
Mr Figueira
The Facts
1. Mr de Caires was employed as a chef by Mr Pestana at the Al Forno Restaurant.
2. Mr de Caires said in his form JET 1 that he was employed by Mr Pestana from 20th
August 2006 to 11th October 2006.
3. Mr Pestana said in his form JET 2 and in evidence that Mr de Caires was employed
from 28th September 2006 to 18th October 2006.
4. Mr de Caires said in his form JET 1 that Mr Pestana agreed to pay him £350 per week
net of social security but he had only received £250 per week between 20th August 2006
and 9th October 2006, and only 2 weeks pay at £350 per week to the date he finished
work. In evidence Mr de Caires said he had received only £200 per week in the period
between 20th August 2006 and the 9th October 2006. In any event Mr de Caires claimed
for £1,050 in unpaid wages.
5. Mr Pestana said that he agreed to employ Mr de Caires as a chef from the date the
restaurant opened which was 27th September 2006. He said in evidence that Mr de
Caires had voluntarily left his previous employment and as he was penniless, Mr
Pestana had agreed to loan him the sum of £250 per week until he started work at the
restaurant whereupon the sum of £100 or so would be deducted from Mr de Caires
wages each week to repay the sums loaned to him. These sums were not deducted from
his first few weeks‟ wages as Mr de Caires was still getting back on his feet.
6. Evidence was heard from Miss Magdelena Czech that the sum of £200 was paid to Mr
de Caires to cover the period of 4 days from 27th September 2006 to Monday 2nd
October 2006, and then Mr de Caires was paid £350 for each of the next 2 weeks that he
worked. Mr de Caires was paid in cash in accordance with his request and social
security was deducted from these sums. Copies of the restaurant‟s social security
returns for the period of Mr de Caires‟ employment were produced to the Tribunal
confirming Miss Czech‟s evidence on these facts.
7. Mr de Caires said that he was due a week‟s notice in respect of the termination of his
employment by Mr Pestana. Mr de Caires said that on the day in question he had
58
nearly completed preparing food for a party of 40 people coming into the restaurant
that night. Mr de Caires said that Mr Pestana arrived in the kitchen at about 5.30pm
and started to pick at the food he had prepared. Mr de Caires asked him not to do that
– an argument followed, and Mr Pestana asked him to leave the premises.
8. Mr Pestana disputes this version of events. He said in evidence that on his arrival in
the kitchen he found Mr de Caires drunk and the food barely prepared. Mr Pestana
said he told Mr de Caires to go home and come back when he was sober; there was no
argument between them. Mr Pestana said that he did not intend to sack him at the
time, but the next two times he saw Mr de Caires, he (Mr de Caires) was drunk and just
asked for his money – he never asked for his job back. Accordingly there was no final
or conclusive conversation about Mr de Caires‟ job or the circumstances of him being
sent home.
9. Mr de Caires said in his form JET 1 that he was due 2 days holiday in respect of the
period he worked for Mr Pestana.
10. Mr de Caires claimed that he was not given a written statement of the terms of his
employment. Mr Pestana said that this was because Mr de Caires was serving a period
of probationary employment with him.
11. Mr de Caires claimed that he had not received a pay slip with his wages. Mr Pestana
said that all his employees received a pay slip in their envelopes.
Decision
12. The burden of proof in this case is upon the Applicant, Mr de Caires. The standard of
proof of the evidence is based on the balance of probabilities. Accordingly it is up to
Mr de Caires to show that in all likelihood his claims are correct.
Period of employment, payment of wages and notice pay due.
13. In evidence Mr de Caires could not remember the starting date of his employment or
his finishing date. His JET 1 is completely at odds with the information and evidence
presented by Mr Pestana. It is clear from the social security schedules that Mr de
Caires was employed by Mr Pestana for social security purposes, from 28th September
2006 to 18th October 2006 and the Tribunal finds these dates to be the dates of Mr de
Caires„ employment by Mr Pestana.
14. No evidence was produced by either party regarding either the amount of any loan
made by Mr Pestana to Mr de Caires or the terms of such a loan. Accordingly the
Tribunal makes no finding in this regard.
15. The parties are agreed that Mr Pestana agreed to pay Mr de Caires the sum of £350 per
week as a chef in the restaurant. The Tribunal is satisfied that during the period Mr de
Caires was employed, 28th September 2006 to 18th October 2006, that this sum was paid
to Mr de Caires. Accordingly no Award in respect of unpaid wages is made.
16. From the evidence heard the Tribunal is of the opinion that the parties employment
contract ended by mutual agreement and no notice pay is due to be awarded to Mr de
Caires.
Holiday Pay
59
17. It must be assumed in the absence of a contract of employment (see paragraph 18
below) that Mr de Caires was entitled to receive the minimum amount of 2 weeks
holiday, which for him was 12 days a year. Mr de Caires worked for Mr Pestana for just
under 3 weeks, so he is entitled to receive 75% of one day as holiday in accordance
with article 11 (5) of the Employment (Jersey) Law 2003 („the Law‟). In order to calculate
the daily rate of Mr de Caires‟ salary the Tribunal have totalled the amount earned by
Mr de Caires during his employment and divided that sum by the amount of days he
worked for Mr Pestana, as follows:
£200 + £350 + £350 = £900 ÷ 16 days
= £56.25 per day
£56.25 ÷ 75% = £42.19 gross.
In accordance with article 11 of the Law the Tribunal AWARDS Mr de Caires the sum of
£42.19 in respect of holiday pay due.
Contract of Employment
18. By virtue of article 3 of the Law each employer must give to each employee a written
statement of the terms of their employment not later than 4 weeks after an employee
begins employment even if such employment ends within the 4 week period.
19. The Tribunal is satisfied that Mr Pestana did not provide a written statement of the
terms of his employment to Mr de Caires which is an offence in accordance with article
9 of the Law punishable by a fine. In accordance with the standard scale set out in the
schedule to the Criminal Justice (Standard Scale of Fines) (Jersey) Law 1993, the
Tribunal hereby fines Mr Pestana the sum of £250.00.
Failure to provide a wage slip
20. The Tribunal is satisfied that Mr Pestana did not provide a written itemised pay
statement to Mr de Caires at the time of paying his wages to him as required by article
51 of the Law. Such failure is an offence pursuant to article 55 of the Law punishable
by a fine. In accordance with the standard scale set out in the schedule to the Criminal
Justice (Standard Scale of Fines) (Jersey) Law 1993, the Tribunal hereby fines Mr
Pestana the sum of £150.00.
SCHEDULE OF AWARDS & FINES
AWARDS
1. Article 11
Payment of holiday due to Mr de Caires. £42.19
FINES
1. Article 9
Failure to provide a written statement of
terms of employment – FINE £250.00
2. Article 55
Failure to provide a written itemised
Pay statement – FINE £150.00
Total FINES £400.00
60
Jersey Employment Tribunal
Case Number: 0910168/06
Applicant: Mr Marek Cukiernik
Respondent: Mrs Jochanna Gibbons t/a Roseville Bistro
Case Summary: Payment of notice
Hearing on 18 June 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman
Mrs Sue Armes & Mr Alan Hall, Panel Members
Representation:
For Applicant: The Applicant did not attend the hearing
For Respondent: Mrs Gibbons represented herself
Witnesses:
For Applicant: None
For Respondent: Miss Dominika Kardis-Carmacho
The Facts
1. Mr Cukiernik was employed by Mrs Gibbons as a kitchen porter on a fixed term
contract of 8 months between 28th March 2006 and 3 December 2006.
2. Mr Cukiernik was given a verbal warning by Mrs Gibbons about his attitude towards
his work and his co-workers. This verbal warning was translated by Mrs Gibbons‟
Head Waitress, Dominika Kardis-Carmacho. A short time later Mr Cukiernik was
given a written warning about his continued behaviour. Again this warning was
translated by Miss Kardis-Carmacho in front of Mrs Gibbons.
3. The Tribunal were informed in evidence by both Mrs Gibbons and Miss Kardis-
Carmacho that following receipt of the written warning referred to in paragraph 2
above, Mr Cukiernik indicated that he wanted to leave the Roseville Bistro. Mrs
Gibbons confirmed in evidence that she said that Mr Cukiernik could either work the
2 week‟s notice required by his contract of employment or work the rest of the week
and leave on Sunday 23 July 2006, which was pay day. In either event Mrs Gibbons
would pay him the two weeks‟ of his wages that she was holding in hand. Miss
Kardis-Carmacho translated this information to Mr Cukiernik and confirmed to the
Tribunal that this was what Mrs Gibbons had said. The Tribunal heard that Mr
Cukiernik replied (through Miss Kardis-Carmacho) that he wished to finish on 23 July
2006, and it was agreed between him and Mrs Gibbons that he would finish on that
date.
4. On 23 July 2006, there was a small leaving party for Mr Cukiernik and he was given his
final wages and his wage slip which explained that he was being paid his wages for
the week he had just worked plus the two weeks wages Mrs Gibbons held in hand and
for 4 days holiday pay due to him. A copy of this wage slip was seen by the Tribunal.
Evidence was heard by the Tribunal that Mr Cukiernik understood the contents of his
wage slip and signed for his wages described therein as paid to him.
5. On 9 October 2006, Mr Cukiernik presented a complaint to the Jersey Employment
Tribunal that he had not received a payment for the 2 weeks notice which he believed
was owed to him.
61
6. Mrs Gibbons made an application to the Tribunal that Mr Cukiernik‟s case be struck
out on the basis that (i) it was made out of time, and (ii) she did not owe any money to
Mr Cukiernik.
Decision
7. The Tribunal cannot strike out Mr Cukiernik‟s claim on the basis that it is made out of
time because such provision contained in article 73 of the Employment (Jersey) Law
2003 only applies to the lodging of complaints of unfair dismissal, and Mr Cukiernik
has not made such a complaint.
8. On the basis of the evidence seen and heard by the Tribunal today, the Tribunal has
decided that Mr Cukiernik misunderstood the situation when he handed in his notice
to Mrs Gibbons. The Tribunal is satisfied that Mrs Gibbons referred throughout in her
conversation with Mr Cukiernik to the two weeks of his wages that she was holding as
being payable to Mr Cukiernik when he left her employ and did not refer to making a
payment of two weeks notice to him at any point. In any event Mr Cukiernik handed
in his notice to Mrs Gibbons so in fact he owes Mrs Gibbons for the 2 weeks he was
contractually obliged to work for her during the period of his notice, and not the other
way round. Mrs Gibbons elected to waive this period of notice as is her right as an
employer.
9. Mr Cukiernik‟s final wage indicates that all sums due to him by Mrs Gibbons
(including holiday pay accrued) were paid to him in full. Accordingly Mr Cukiernik‟s
application to the Tribunal is struck out herewith.
10. The Tribunal would like to draw attention to the fact that Mrs Gibbons appeared to
have acted fairly throughout this procedure. She issued formal verbal and written
warnings which were translated for the benefit of Mr Cukiernik. Further, Mrs Gibbons
promptly accommodated Mr Cukiernik‟s request to leave her employment and paid
him all sums due to him without delay. Mrs Gibbons has acted without reproach in
this matter and also in the conduct of the Tribunal hearing by not only appearing
but also presenting comprehensive and cogent evidence of her case to the Tribunal, for
which the Tribunal expresses its appreciation.
62
Jersey Employment Tribunal
Case Number: 1212-217 /06
Applicant: Mr Perry Courval
Respondent: K.S. Wanless Carpenters & Joiners
Hearing on 14th June 2007
Before: Mr David le Quesne, Chairman
Mr Peter Woodward & Mr Sam Le Breton, Panel Members
Representation: The parties represented themselves.
1 Mr Courval claimed that he was unfairly dismissed by the Respondent. Having heard
from both sides, who agreed on this, that Mr Courval was employed twice by Mr Wanless, we
had to consider if there was continuous employment for at least 26 weeks, to bring the claim
within article 73 of the Law.
Mainly because Mr Courval told us that, after his first employment ended, he felt able
to seek other employment, we concluded that there were indeed two separate employments
rather than one continuous employment. The second employment began in August 2006 and
ended at the beginning of December that year, and was for less than 26 weeks.
We therefore decided that the case did not come within the qualifying period of 26
weeks stipulated in article 73, so we dismissed the claim for unfair dismissal.
2 Mr Courval‟s only other claim, he told us, was for payment in lieu of one weeks notice.
Mr Wanless accepted that he did not pay in lieu of notice. We found that the payment in lieu
of notice of one week was not paid, as it should have been. We also decided that the
appropriate calculation was 39 hours at £6 per hour which amounts to £234.00.
We therefore ordered Mr Wanless to pay £234.00 to Mr Courval.
63
Jersey Employment Tribunal
Case Number: 0211197 / 06 – 1st Applicant
0211196 / 06 – 2nd Applicant
Applicant: Miroslawa Stachurska - 1st Applicant
Rafel Rojek - 2nd Applicant
Respondent: J.C. Corbel t/a Pierwszy (The Polish Café)
Hearing on 25 June 2007
Before: Mr David le Quesne, Chairman
Mrs K Flageul and Mr A Hall, Panel Members
Representation:
For Applicant: Mr Stevie Ocean, Jersey Rights Association, represented both
Applicants.
For Respondent: The Respondent represented himself.
Interpreter Miss Aleksandra Kanczura
1 These two applications are by two former employees of the Respondent at Pierwszy
(Polish Café) at 17 Mulcaster Street. Their employment terminated at about the same time, in
related circumstances. Whilst we heard the cases consecutively, we gave our decisions on both
cases at the end of the second hearing, and it is convenient to issue one written judgment.
2 Both Applicants claimed for holiday pay. In both cases, the Respondent had offered to
pay, but in both cases the offers seem to have been refused. We established from Mr Corbel
that the offers remained open, and each Applicant then accepted the offer made to him/her.
We do not understand why these offers were not accepted at the time they were made,
or when JACS was involved.
In accordance with the offers made and accepted, we therefore Order:
A That Mr Corbel shall pay to Mrs Stachurska £78.00 holiday pay.
B That Mr Corbel shall pay to Mr Rojek £120.00 holiday pay.
Mrs Stachurska
3 Mrs Stachurska told us that she never signed and never was given a contract of
employment, which is to say Employment Particulars as required by Part 2 of the Law. Mr
Corbel denied this, and said that he gave her a contract as he did with all his staff, and she
signed it. He pointed to the fact that we were supplied with a copy of Mr Rojek‟s contract.
We decided to make no finding on this point. We had no reason to doubt that it was
Mr Corbel‟s practice to issue employment contracts, but we could not determine whether or
not this was done for Mrs Stachurska.
4 Mrs Stachurska‟s claim came down to her claim that she was entitled to payment in
lieu of notice of 1 week.
What Mrs Stachurska told us was that she worked the first two days of the relevant
week, but then told Mr Corbel that she did not want to continue. Her main reason for this was
because Mr Rojek‟s employment had terminated, but there were lesser reasons. She said that
Mr Corbel invited her to continue to work for the rest of the week, but she refused.
Generally (and there are exceptions), an employee cannot choose whether to work out
the notice period or stop work and take a payment instead of notice; the employee should
work for the notice period, and the employer should offer work for that period. In a case like
64
this, where the employer offers the employee work for the period of notice and the employee
refuses to work, the employee has no right to payment instead of working the notice period.
For this reason, Mrs Stachurska is not entitled to payment instead of working; if she
wanted to be paid, she should have worked for the remainder of the week. We therefore reject
this part of her claim.
Mr Rojek
5 Having accepted Mr Corbel‟s offer of holiday pay, Mr Rojek‟s remaining claim was for
payment instead of the weeks notice to which he believed he was entitled.
6 We had one issue to determine: did Mr Corbel dismiss Mr Rojek with immediate effect
and with no option to work his week of notice, as alleged by Mr Rojek, or did Mr Rojek resign
with immediate effect, as alleged by Mr Corbel?
7 Having heard evidence from Mr Rojek and from Mr Corbel and Miss Bell, his partner
and the manager of the café, we believe that Mr Rojek did resign and refuse to work for his
notice period. We believe that he was fed up with his work and his working conditions, which
is why he had walked out of the job the previous day, and that, although Mr Corbel offered to
take him back for the notice period, he was not prepared to return.
As in the case of Mrs Stachurska, in such circumstances the employee is not entitled to
payment in lieu of notice, and we therefore make no order for any such payment.
65
Jersey Employment Tribunal
Case Number: 1212-216 / 06
Applicant: Ian Mangles
Respondent: IJT Direct Limited
Case Summary: Constructive unfair dismissal‟ No contract; Discretionary bonus.
Hearing on 2 July 2007
Before: Mr David le Quesne, Chairman
Mrs Sue Armes, Panel Member
Mr Paddy Kirwan, Panel Member
Representation:
For Applicant: Mr Mangles represented himself
For Respondent: Mr Anthony Moxon represented the respondent (“IJT”).
1 Mr Mangles makes three claims:
 that he had no written particulars of employment as stipulated in part 2 of the Law,
 that he was not paid a bonus to which he was entitled, and
 that he was unfairly constructively dismissed.
2 Mr Mangles was employed from May 2006 by IJT. IJT was a new venture, in Jersey, set
up by or on the instigation of Mr Moxon, who was a director of Bentham Limited, a company
selling inkjets and printers from the UK. The business of IJT was similar to that of Bentham,
but it was part of what is known in Jersey as the „fulfilment industry‟, whereby low value
goods supplied by Jersey companies are free of VAT. Mr Mangles‟ job was to set up this new
venture and then run it. He had known Mr Moxon well for many years, having worked for his
UK company. Indeed, for about 3 months Mr Mangles had lived with Mr Moxon and his wife.
Particulars of Employment
3 The Respondent agreed that Mr Mangles was not given particulars of his employment,
so we only have to decide what penalty, if any, to impose.
4 We regard a failure to provide to an employee the required particulars of his
employment as a serious matter. Not only is it a breach of the law, but often, as in this case, it
leaves room for argument as to what were the terms of employment. In this case, we believe
that it was, at least to some extent, left up to Mr Mangles himself to prepare his contract of
employment at the same time as preparing the contract for the other IJT staff.
5 We have decided that IJT should pay a fine of £250.00, which should be paid by
arrangement with the Secretary to the Tribunal.
Bonus
6 Mr Mangles told us that his remuneration package agreed with Mr Moxon on behalf of
IJT included an annual bonus of £50,000 to be paid quarterly. Because there were no written
particulars of the employment, we had to determine this issue on the basis of the evidence we
heard. We were able to determine it solely on the basis of Mr Mangles‟ own evidence.
7 What Mr Mangles told us was that he discussed the bonus with Mr Moxon before the
employment started, and that:
-it was to depend upon overall sales of the company;
-it was dependent on whether the business had gone as predicted;
66
-it was not agreed how the bonus would be calculated;
-it was within Mr Moxon‟s discretion;
-no criterion was set for the bonus. It could have been gross value of turnover.
-he took it as implicit that it would be based on performance as against projected
figures.
-Mr Moxon had traditionally assigned bonuses on a whim.
8 It well may be that Mr Mangles and Mr Moxon did agree that an annual bonus would
be paid; Mr Mangles‟ evidence that he chased for payment and was not told that there was no
such agreement suggests this to have been the case. However, Mr Mangles‟ evidence drove us
to the conclusion that there was not sufficient certainty about the terms of the bonus payment
for the agreement to be enforceable. The statements of Mr Mangles referred to on paragraph 4
above show how it would be impossible for any court or tribunal to hold that there was a
binding agreement.
There may have been an understanding or „gentlemen‟s agreement‟, but that is not
enough to create a binding legal obligation.
Mr Mangles admitted that the payment was to be discretionary. This in itself is not consistent
with an entitlement to the bonus.
He further agreed that the method of determining if a bonus should be paid, and if so how
much, was not agreed. We asked Mr Mangles how, if we were to find that there was an
agreement for a bonus, we were to calculate the amount of bonus due to him, and he was
unable to help us. This revealed a fundamental problem for him: there was no agreement on
how to determine his entitlement.
9 In these circumstances, we adjourned to consider the matter before the respondent had
opened its case, and we decided that the claimant could not succeed in this part of his claim,
and when we returned to the hearing I informed Mr Mangles that his claim for a bonus was
dismissed.
Unfair dismissal
10 Mr Mangles‟ case was that he was treated by his employer in such a way that he could
not be expected to continue in his employment. Specifically, he relied upon harassment and
abuse by Mr Moxon and upon the failure to pay the bonus.
11 A failure by an employer to comply with the terms of the contract of employment can
be sufficient reason for the employee to terminate his employment; it can amount to
constructive unfair dismissal. However, the failure to pay the bonus cannot form a ground for
such a claim because we found that there was no entitlement to the bonus. We therefore have
to determine this claim on the basis of what we refer to as the „harassment‟ claim.
12 The harassment allegedly consisted of many telephone calls from Mr Moxon to Mr
Mangles, both at work and out of work, and of abuse by Mr Moxon of Mr Mangles in
telephone calls and at meetings.
13 The evidence of witnesses leads us to conclude that Mr Moxon probably is a forceful
and direct man, and we accept that what he said, particularly if something had been done
wrongly or badly, might have contained bad language. We can also accept that Mr Moxon did
telephone Mr Mangles frequently, and that, if there was a problem, there would have been
many and late calls.
14 Mr Mangles and Mr Moxon knew each other well. They were in a business in which
the pressure could be intense: new business was crucial, and prompt attention to satisfying
orders was critical. We have asked ourselves whether Mr Moxon changed from the man whom
Mr Mangles well knew to a much more demanding and abusive man, and we do not think this
was the case.
67
15 Our decision on this point is determined mainly by two matters. First, in the many
email exchanges between Mr Mangles and Mr Moxon, there is not one in which Mr Mangles
complains that Mr Moxon is harassing him in the way alleged, and there was no other
evidence to support this allegation. Second, in his resignation email, Mr Mangles wrote on 11th
October 2007 to Mr Moxon:
“Good evening Anthony,
I will post you a letter to confirm this, but I‟ m resigning from IJT Direct. I will work my
contracted hours until the end of the month, but I have decided to accept the position offered to
me in Cambridge.
May I wish you every success in the future and thank you for the experience I have gained (and
enjoyed) whilst working for you.
Sincerely,
Ian Mangles”
We put to Mr Mangles that this was not the resignation letter of an employee who was leaving
because he had not been paid £25,000 he believed was due to him and who had been forced to
leave due to that and to abuse and harassment. His answer was that he wanted to leave
amicably and that, had he thought it through, he would have worded it differently.
We cannot accept that explanation.
16 Mr Mangles wrote an email to Mr Moxon on 10th October, just before he resigned,
saying:
The bottom line is that I want to keep working here, but it‟s getting harder and harder to see the
justification of doing so. I have been offered jobs in Cambridge which pay more than I am
receiving now….”.
We cannot believe that this letter was written by a man who was on the brink of
leaving his job because of harassment.
17 We do not think that Mr Mangles left his employment because of the alleged
harassment, and we therefore dismiss his claim for unfair dismissal.
68
Jersey Employment Tribunal
Case Number: 2310-185 / 06
Applicant: Mr Justin Surcouf
Respondent: La Rocque Fisheries Limited
Case Summary: Constructive Unfair Dismissal
Hearing on 9 July 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman
Mr Stewart Mourant, Panel Member
Mr William McPhee, Panel Member
Representation:
For Applicant: Mr Surcouf represented himself
For Respondent: Advocate Paul Nicholls, Walkers
Witnesses:
For Applicant: Miss Susan Smith
Mr. Gary Whipp
For Respondent: Mr Douglas Le Masurier, director
The Facts
1. Mr Surcouf was employed by the Respondent from 1st September 2002 to 22nd
September 2006 as a Shellfish Farm Manager.
2. Mr Surcouf requested a contract of employment many times throughout his
employment and was assured by Mr Le Masurier that a contract would be provided. In
December 2004 a brief statement of Mr Surcouf‟s terms of employment was produced
by the Respondent. This statement contained very little detail of the actual conditions
of Mr Surcouf‟s employment but did state:-
„ 7. Contract with La Rocque Fisheries being completed‟.
Mr Surcouf understood this sentence to mean that a more detailed, formal, contract of
employment would be forthcoming. However despite Mr Surcouf‟s regular requests a
document was not produced until February / March 2006. This is discussed in more detail
in paragraph 4 below.
3. In December 2005 Mr Le Masurier announced that he was going to sell the business
operated by the Respondent. Mr Le Masurier informed Mr Surcouf and his wife of his
plans in advance of putting the business up for sale so that they would not hear of Mr
Le Masurier‟s intentions from a third party. The Tribunal were also informed that this
conversation was an indication of the good relationship between Mr Le Masurier and
Mr Surcouf. The Tribunal were informed that Mr Le Masurier also promised Mr
Surcouf a payment on the sale of the business by way of a loyalty payment if he
continued to work in the business until it was sold. It appears from Mr Surcouf‟s
evidence that Mr Le Masurier was reluctant to name an amount for this payment but
when pressed indicated that it could be about £15,000 or less if Mr Surcouf was
employed by the new owners. The Tribunal noted that this evidence was not disputed
by Mr Le Masurier.
4. During 2005 and 2006 various interested parties looked around the Respondent‟s
business with a view to purchase but no sale was concluded. Throughout this time Mr
Surcouf did not have a contract of employment and felt particularly vulnerable both in
69
respect of his rights in the event of termination of his employment by a new owner
and also, if his services were required by a new owner he did not know what his
current conditions of employment were, when dealing with a new boss. The Tribunal
were informed that after one prospective purchaser looked around the business, Mr
Surcouf received a text message from him to the effect that if he bought the business,
Mr Surcouf would receive two week‟s notice and be out of a job. Mr Le Masurier
confirmed this by stating that on hearing about this he (Mr Le Masurier) assured Mr
Surcouf, „that he would see Mr Surcouf right, and Mr Surcouf was to trust him in this
matter‟. This was not disputed by Mr Surcouf. Mr Surcouf repeatedly asked for a
contract of employment to be provided to him by the Respondent. In February or
March 2006, Mr Le Masurier produced a draft contract of employment for Mr Surcouf.
This was rejected by Mr Surcouf because it was in the same form as Mr Le Masurier
had provided for his farm workers and it was not suitable for Mr Surcouf who was a
manager and whose terms and conditions of work were more detailed. A copy of this
draft contract was produced to the Tribunal who noted that it did not contain detailed
information about such matters as the intervals of Mr Surcouf‟s pay, his holiday
entitlement, sickness pay, notice periods or the start date of his continuous
employment. In particular this draft contract did not include any reference to the
loyalty bonus which Mr Le Masurier had agreed to pay Mr Surcouf on the sale of the
business.
5. Mr Le Masurier produced a further draft of the contract of employment on about the 6th
September 2006. This draft included many of the sticking points in the first draft but
did not include any reference to the loyalty bonus.
6. The Tribunal were informed by Mr Le Masurier that he did not wish to be „tied down‟
in respect of the bonus. As far as he was concerned all bonuses (whether the loyalty
bonus or a Christmas bonus) were in his discretion and depended on the state of the
business at that time. Mr Le Masurier had given „his word‟ that he would look after Mr
Surcouf when the business was sold and that should have been sufficient.
7. Mr Surcouf gave evidence that he was very unhappy that a contract had not been
provided to him despite his repeated requests. He also gave evidence that the
Statement of Terms provided in 2004 (see paragraph 2 above) contained a reference to,
„6. Vehicle‟, which was meant to refer to the provision of a vehicle by the Respondent
for his use. In fact this vehicle was never supplied. Mr Surcouf said he believed that
Mr Surcouf never intended to provide him with a contract of employment and
certainly was not going to commit to the loyalty bonus in writing, and that like the
previous promises of a vehicle and a contract of employment, these were just „hollow
promises‟. In fact for these reasons and in order to avoid the continued feeling of
insecurity about his future he resigned from his position on 15th September 2006.
8. On leaving the Respondent, Mr Surcouf went to work for Jersey Ormer Limited a
company which he had set up but sold to friends in July 2006. Mr Le Masurier gave
evidence that he believed that Mr Surcouf had planned to work for Jersey Ormer
Limited for some time and that Mr Surcouf‟s resignation from the Respondent had
nothing to do with the failure to provide a contract of employment or address the
loyalty payment issue. Mr Le Masurier gave evidence that in fact he had also felt
vulnerable for some time because Mr Surcouf spent time with his friends at Jersey
Ormer Limited and had even travelled to Ireland with one of the owners to find out
more about ormers, and Mr Le Masurier did not want to lose Mr Surcouf‟s services. Mr
Surcouf replied that he was very interested in ormers and was only helping out a
friend in his spare time and holidays – his involvement with Jersey Ormer Limited did
not affect the Respondent‟s business at all. Mr Surcouf further said in evidence, which
was supported by Miss Smith, that in fact there was no job for him at Jersey Ormer
Limited because the business had not started fully and on leaving the Respondent, a
job had been created for him by his friends in order for him to support his family.
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9. On the 1st October 2006, a mutual friend of Mr Le Masurier and Mr Surcouf arranged a
meeting between the two men in order to try and negotiate Mr Surcouf‟s return to
work for the Respondent. The meeting progressed well but failed when Mr Le
Masurier refused to include reference to the loyalty payment in a further draft of Mr
Surcouf‟s contract of employment. Accordingly Mr Surcouf did not return to work and
filed a complaint of constructive unfair dismissal with the Employment Tribunal on
22nd October 2006, alleging that:
a) The Respondent‟s failure to provide a written contract of employment placed him
under undue stress because he could not be sure if his position was secure and
permanent, and
b) He had damaged his back by excessive lifting of heavy weights in his work which
was exacerbated because the business was frequently short staffed, and
c) That Mr Le Masurier had verbally abused him and been unappreciative of his
efforts at work.
All of the allegations were denied by the Respondent in its Form JET 2.
The Law
10. Article 61 (1) of the Employment (Jersey) Law 2003 („the Law‟) provides as follows;
(1) An employee shall have the right not to be unfairly dismissed by his employer.
11. Article 62 of the Law defines the circumstances in which an employee is dismissed. In
particular Article 62(1) (c) provides as follows:
For the purposes of this Part an employee is dismissed by his employer if (and, subject to
paragraph (2), only if) –
(c) the employee terminates the contract under which he is employed (with or without
notice) in circumstances in which he is entitled to terminate it without notice by reason of
the employer‟s conduct.
12. For this hearing the Tribunal must be satisfied that Mr Surcouf was entitled to
terminate his contract pursuant to Article 62 (1) (c) above and the supporting common
law.
13. An employee is constructively dismissed when he resigns because the employer is,
itself, in breach of the employment contract. A kind of legal fiction converts the
employee‟s resignation into a dismissal under the Law (article 62 (1) (c) above). To
claim constructive dismissal, the employee must establish that:
 the employer was in breach of a term of a contract of employment, and,
 the breach was a repudiatory one, entitling the employee to resign; and
 the employee resigned because of that breach of contract
14. The 3 principles of constructive dismissal described above have been applied by this
Tribunal in Robinson v States of Jersey, Department of Education, Sport & Culture
(2006), and Mackee v Jacksons (CI) Limited (2006). The Royal Court also recognised
these principles in Rossborough (Insurance Brokers) v Boon and Aziz (2001 JLR 416),
although no definitive finding regarding constructive dismissal was made at that
interlocutory hearing.
15. An employment contract contains both written and implied terms. Mr Surcouf did not
have a written contract of employment containing the particulars required by Article 3
of the Law. The Tribunal have looked at the implied terms of the contractual
relationship to ascertain if there has been a breach of contract. Implied terms of any
employment contract are such matters as the duty of trust and confidence and the duty
of cooperation between the parties. It is the implied duty of trust and confidence
which is relevant to this case.
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16. In the English case of Malik v BCCI [1997] IRLR 462 HL. It was stated that an employer
may not, „without reasonable and proper cause conduct itself in a way calculated and
likely to destroy or seriously damage the relationship of trust and confidence between
employer and employee‟. This test was applied in both Robinson and Mackee, above.
It could be construed as imposing an obligation on employers to act reasonably when
dealing with implied contractual duties and has been referred to in an English case as
creating an obligation of „fair dealing‟ (Shiner Limited v Hilton [2001] IRLR 727).
17. The Tribunal has looked at each of the three areas described in paragraph 13 above in
turn in reaching its decision.
Decision
Was the employer in breach of a term of the contract of employment?
18. For the reasons stated in paragraphs 15 and 16 above this Tribunal finds that Mr
Surcouf can only allege that the implied duty of trust and confidence between himself
and the Respondent has been breached by the Respondent‟s failure to provide him
with a written contract of employment and in particular a written acknowledgement of
the loyalty payment to be made to him upon the sale of business.
19. The provision and existence of a contract of employment is a fundamental and
important part of an employer and employee‟s relationship. It‟s contents govern the
parties expectations, the manner in which they will behave towards each other as well
as regulating their conduct – in effect it sets out the extent and limits of their working
relationship. It is a simple principle of fairness that each party in an employment
relationship should know what is expected of the other on a daily basis. The
importance of a contract of employment is recognised by the Law – it is the first matter
to be dealt with under the Law and is expected to be provided to an employee within 4
weeks of starting employment (of more than 8 hours a week) even if the employee
leaves within this time.
20. The Tribunal places great importance on the duty in employment contracts of an
employer to provide a contract of employment. The Law has been in force since 1st July
2005, and even prior to it there were regulations requiring a statement of terms to be
provided. The Law provides that breaches of an employer‟s duty to provide a contract
of employment can result in a fine of up to £5,000, which is a significant sum.
Accordingly the importance and value of a contract of employment is recognised by
the Law and reflects the wishes of society for the terms of employment relationships to
be recorded in writing for the clarity and certainty of each party. It is not disputed that
in this case no written contract of employment compliant with the Law was issued,
although it is noted that during 2006 a contract was under negotiation.
21. The Tribunal considers that it is a part of the implied duty in employment contracts to
maintain trust and confidence that an employer should comply with the Law and issue
a contract of employment to an employee which at the very least complies with the
minimum requirements of the Law and that it should be provided within 4 weeks of
such employee starting work.
22. The Tribunal considers that the Respondent has, by failing to produce a contract of
employment for Mr Surcouf for over 3 years despite his requests, breached its implied
duty to maintain the trust and confidence of its employee.
Is the breach of contract a repudiatory one, entitling the employee to resign?
23. The Tribunal has considered whether the breach of contract by the Respondent is
fundamental to their relationship, thus entitling Mr Surcouf to resign without
breaching the contract himself.
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24. The Tribunal has paid attention to these following issues. Mr Surcouf gave evidence
that he, by nature, took promises given to him at face value. Accordingly when Mr Le
Masurier promised him a vehicle in the December 2004 Statement of Terms (see
Paragraph 2) he believed that it would be provided, and was disappointed when it was
not forthcoming. The Tribunal heard that Mr Le Masurier and Mr Surcouf worked
together as „father and son‟ and „superbly‟ for the first 3 years, and there is little doubt
that Mr Le Masurier was a good employer. Indeed Mr Le Masurier helped or offered to
help Mr Surcouf with setting up Jersey Ormer limited and there seemed to be no
difficulties between them. However their relationship changed soon after Mr le
Masurier announced his intention to sell the business and particularly regarding Mr
Le Masurier‟s reluctance to commit his promise to pay Mr Surcouf a loyalty bonus to
writing. Mr Le Masurier admitted in his own evidence that this was the reason for the
deterioration in their relationship coupled with Mr Surcouf‟s increased interest in
Jersey Ormer Limited.
25. The Tribunal is mindful of the fact that Mr Surcouf had been asking for a contract of
employment for nearly 18 months before the first draft was produced in
February/March 2006. The Tribunal does not consider the 2004 Statement of terms to be
a contract of employment under the Law. The Tribunal has also noted that the promise
of a vehicle for Mr Surcouf‟s use was not fulfilled. Finally and most crucially, the
Tribunal has borne in mind the fact that the Respondent‟s business was for sale and
that prospective purchasers were looking at the business in the presence of Mr Surcouf
whilst he did not have the security of a contract of employment with the Respondent.
The Tribunal can understand that the text message received from a prospective
purchaser threatening to give Mr Surcouf 2 week‟s notice following the purchase of the
business would have been very unsettling.
26. From the evidence heard the sticking point in the conclusion of the contract of
employment appeared to have been Mr Surcouf‟s reluctance to commit his promise of
a loyalty payment to writing and his insistence that his word was sufficient in the
circumstances. The Tribunal heard in evidence that Mr le Masurier was taking advice
at this time from his accountant and JACS and it considers that Mr Le Masurier could
have taken professional advice on this point so that appropriate wording could be
found occupying the middle ground between the parties. It was obvious to the
Tribunal that Mr le Masurier wanted to keep Mr Surcouf‟s services. It was also noted
that the loyalty payment was proposed by Mr Le Masurier on his own initiative. It is
not unreasonable for Mr Surcouf to ask for this intention to be expressed in writing.
The Tribunal would have found any reasonable attempt by Mr Le Masurier to express
this arrangement in Mr Surcouf‟s contract of employment to be acceptable. The
Tribunal has also noted that Mr Surcouf was willing to continue work despite the
injury to his back because he wanted to be working for the Respondent at the time the
business was sold and thus qualify for the loyalty payment.
27. After careful consideration of all the circumstances of the case the Tribunal finds that
in this case the breach of the implied duty of trust and confidence by the Respondent
through its failure to provide a contract of employment is heightened to a repudiatory
breach of contract because:
a) the business was for sale, which could be expected to create a greater feeling of
insecurity in Mr Surcouf as an employee whether or not he had a contract of
employment;
b) Mr Surcouf had been promised a loyalty payment if he continued to work for the
Respondent until the sale;
c) Mr Surcouf was willing to carry on working until the date of any sale despite the
injury to his back, but wanted Mr Le Masurier to commit his promise to writing in
order to settle the terms of their arrangement;
d) Mr Le Masurier steadfastly refused to commit the arrangement to writing, and
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e) Mr le Masurier had previously failed to provide a vehicle or a contract of
employment to Mr Surcouf, despite promises to do so.
Did the employee resign because of that breach of contract?
28. The Respondent has alleged that Mr Surcouf resigned because he wished to pursue
another business venture with Jersey Ormer Limited and not because of any breach of
contract by the Respondent.
29. The Tribunal heard evidence from Miss Smith that at the time Mr Surcouf left the
employ of the Respondent, Jersey Ormer Limited was not in business because it had
been unable to import ormer seed into Jersey and, in any event the breeding season
was over. Accordingly, a decision had been made by the owners of Jersey Ormer
Limited not to start business for about a year. Further, in order to do Mr Surcouf a
favour they offered him a few weeks maintenance work from the beginning of October
to the end of November only. The Tribunal were also informed that Mr Lewis met
with Mr Le Masurier and Mr Surcouf on the 1st October 2006 in order to try and
negotiate an agreement between them so that Mr Surcouf would go back to work for
the Respondent. Evidence was also heard that Mr Le Masurier and Mr Surcouf tried to
negotiate again in January 2007 for Mr Surcouf to start back to work but again the
discussions failed. In both cases the Tribunal were informed that Mr Surcouf was
willing to work for the Respondent but the talks failed because Mr Le Masurier would
not include a reference to the loyalty payment in Mr Surcouf‟s contract of employment.
30. The Tribunal concludes from this evidence that Mr Surcouf resigned because of the
failure of the Respondent to produce a contract of employment for Mr Surcouf which
included a reference to the loyalty payment which had been promised to him.
Accordingly, Mr Surcouf resigned because of the repudiatory breach of contract
described in paragraph 27 above.
Conclusion
31. This Tribunal finds that Mr Surcouf was constructively unfairly dismissed.
AWARD
Mr Surcouf was employed by La Rocque Fisheries Limited for 4 years and 3 weeks and
pursuant to the Employment (Awards) (Jersey) (Order) 2005 is entitled to 21 weeks pay by way
of compensation.
Mr Surcouf earned £423.07 per week.
AWARD
£423.07 x 21 weeks = £8,884.47
FINES
The Respondent failed to provide a contract of employment for Mr Surcouf as required by
article 3 of the Law. In accordance with article 9 of the Law this is an offence punishable by a
fine not exceeding £5,000 as set out in the Criminal Justice (Standard Scale of Fines) (Jersey)
Law 1993.
The Respondent is HEREBY FINED the sum of £250.00
74
NOTES:
Mr Surcouf alleged in his Form JET 1 that he also resigned because of the damage to his back
caused by the excessive lifting of heavy weights in his work and because the business was
frequently understaffed. In addition Mr Surcouf stated that Mr Le Masurier had been verbally
abusive to him and unappreciative of his efforts at work. On hearing the evidence in this case
the Tribunal finds these allegations to be unsubstantiated and has disregarded these
statements. The Tribunal finds Mr Le Masurier to have been a reasonable employer in his
practices and in the treatment of his staff.
75
Jersey Employment Tribunal
Case Number: 1710181/06
Applicant: Mrs Judith Beaumont
Respondent: Rainbow Tots Limited
Hearing on 10 July 2007
Before: Mr David Le Quesne, Chairman
Mr Stewart Mourant and Mr Alan Hall, Panel Members.
Representation:
For Applicant: Judith Beaumont
For Respondent: Advocate F Benest represented the Respondent
1 Mrs Beaumont worked for about six years as a relief nursery nurse at the nursery
school known as Goose Corner Nursery, run by Maricard Nurseries Limited. She worked
pursuant to a written contract which she signed on 6th December 2004, but which stated
“Starting date of employment: 28.08.00” and “Starting date of this contract: 01.01.05”.
This contract with Maricard is what is known as a „zero hours‟ contract, which is said
to mean that there is no obligation on the employer to provide work, or on the employee to
work. To the question of why, in such circumstances, a contract is necessary at all, the answer
is that such a contract provides flexibility for both sides, yet describes the terms which apply
when one party is actually working for the other, such as the duties to be performed.
In July 2006 Mrs Beaumont and the other staff at the nursery were told that the nursery
was to be taken over by Rainbow Tots Limited, another nursery business.
2 Mrs Beaumont‟s claim is that the respondent agreed to take over the existing contract
between her and Maricard, in other words that the respondent was to be substituted for
Maricard in that contract, which otherwise would continue unaltered. Mrs Beaumont also, and
crucially, claims that it was an implied term of her contract with Maricard, which was carried
forward to her contract with the respondent, that Maricard and then the respondent would be
obliged to offer her work for a minimum number of hours each week. She said that originally
it was for 15 hours per week, but by 2006 she had agreed to work 25 hours per week, and this
was the number of hours which was to be implied.
By agreement with Maricard, the complainant only worked during school terms, as she
had and has a son who is at school.
Mrs Beaumont‟s claim thus is that the respondent took over her contract with Maricard
and that included the obligation to provide at least 15 hours work weekly during terms.
3 In September 2006, at the start of the new term, Mrs Beaumont was told by Trish Wild,
the respondent‟s nursery manager, and Mrs Jayne Newton (who gave evidence before us), that
they had no work for her at present. They offered to contact other nurseries to recommend her,
and fulfilled this promise. Mrs Beaumont was unhappy about this, for she thought that a
minimum of 15 hours per week work was guaranteed; this was what she needed to support her
family.
Mrs Beaumont did find other work, and did not work for the respondent. She now
claims that the failure of the respondent to offer her a minimum of 15 hours work per week
was in breach of the implied term of her contract, which contract the respondent had taken
over from Maricard.
4 Rainbow Tots Limited has run two arguments, the first of which was not presaged in
its JET2 response form or in its skeleton argument.
This first argument is that there was no contract at all between Mrs Beaumont and the
respondent; the contract with Maricard expired when the nursery was taken over by the
respondent, and it only would have been revived, with the respondent rather than with
Maricard, had the complainant accepted work offered by the respondent.
76
5 In its JET2 form the respondent ticked boxes agreeing that Mrs Beaumont was an
employee and that the employment was continuing. It also stated on the form that “the
employee was employed on a zero hour‟s contract” and “Mrs Beaumont was informed that we
would contact her in the coming weeks as and when work became available in accordance
with her contract”.
On 7th July 2006 the respondent wrote to the complainant a letter which included the
following “Please be assured that your job is safe….”.
In October 2006 Trish Wild of the respondent wrote “To whom it may concern, This is
to confirm that Judy Beaumont is on a zero hour contract…”.
6 We do not agree with the respondent‟s argument on this point. We are satisfied that
the respondent and the complainant had the same contract as had existed between the
complainant and Maricard. We reach this decision on the basis of the passages which we have
quoted, relying primarily on the two letters, and not on the JET2 form. Also, we cannot accept
that the respondent would have offered work to Mrs Beaumont in October 2006 if it had not
regarded itself as being contractually tied to her; if there was no contract, before offering work
to her it would have had to agree afresh with her the terms on which she would work.
7 The respondent‟s second and main argument was that the contract was no more than a
zero hours contract, with no obligations by it to offer work to Mrs Beaumont or by her to
accept offers of work; there was in particular no obligation on the respondent to offer a
minimum number of hours of work each week during terms.
To make our decision, we have considered the terms of the written contract, the
surrounding circumstances and the conduct of the parties.
8 Whilst the terms of the written contract do not wholly support the respondent‟s
contention, its tenor is that there are no such mutual obligations as referred to in paragraph 7
above. Examples are:
Clause 3a You will only be paid for hours worked.
Clause 3b Your hours of work are conditional on various business requirements. There may
be times when no work is available for you and the Company has no duty to provide you with
any work at such times. However, when there is work available, the Company will do its best to
allocate work to you.
Clause 3c This Contract is conditional on your agreement to work flexible hours or no
hours if necessary.
In addition, the contract provides that there is no holiday pay, no sickness pay, no pension
scheme, no redundancy scheme and no maternity leave or payment.
In our view, this contract makes it clear that there is no obligation upon the respondent
to provide work to the complainant.
That is not the end of the matter, for Mrs Beaumont says that, as a result of what had
happened over the years, there had arisen an implied term that she would be offered a
minimum of 15 hours work each term week. In effect, her case was that the nature of the
contract had changed as a result of arrangements made between the parties.
9 We accept that it had become the practice for Mrs Beaumont to work a minimum
number of hours each term week. In 2003 and 2004, that minimum was 15 hours; in 2005 it was
20 hours, and in 2006 it was 25 hours. Those changes reflected the fact that Mrs Beaumont‟s
son was growing older and spending longer at school. It suited Mrs Beaumont to work longer
hours and it suited Maricard.
Mrs Beaumont told us that she felt able to take days off, for instance if she was needed
to go to hospital with her husband, but that she would give plenty of notice. By standing
arrangement, she took off the school holidays, when her son would be on holiday.
10 We have come to the conclusion that these arrangements did not amount to a change in
the contractual terms as described in the written contract. We think that they were convenient
arrangements for both sides to the contract, and because they reflected what suited both sides,
they became regular or established, but this does not mean that they altered the contract. Any
long term arrangement between people is likely to become bedded down so as to establish a
77
pattern or regularity; it makes the arrangement easier to operate if there is a pattern, so that
both sides know, so far as they can within the terms of the contract, where they are. It does not
follow that the contractual terms are changed and does not necessarily mean that the new
arrangement or pattern becomes an implied term of the contract.
The respondent, Rainbow Tots Limited, therefore had no obligation to offer any work
to Mrs Beaumont, let alone a minimum of 15 or 25 hours per week.
11 The consequence of this decision by the Tribunal is that Mrs Beaumont was not
dismissed by Rainbow Tots Limited. As we heard from both sides, in October the respondent
did offer three days work to Mrs Beaumont, which she was unable to accept because she had
accepted other work. The contract came to an end because Mrs Beaumont found other
employment and was not available to work for the respondent when it was able to offer her
work.
We therefore dismiss Mrs Beaumont‟s claim.
78
Jersey Employment Tribunal
Case Number: 1203-055/07 (1st Applicant)
1203-056/07 (2nd Applicant)
1st Applicant: Mr Lee Ogden
2nd Applicant: Mr Paul Gregory
Respondent: Mr DP Cronin
Hearing on 23 July 2007
Before: Mr David le Quesne, Chairman
Mrs Mary Curtis and Mr Sam Le Breton, Panel Members
Representation:
For Applicant: The Applicants represented themselves
For Respondent: The Respondent represented himself
1 We heard these two cases together because they have so much in common: the same
jobs with the same employer starting within a few months of each other and ending on the
same date in the same circumstances. Mr Gregory and Mr Ogden gave evidence, followed by
Mr Cronin.
Mr Cronin had played no part until today in any of the tribunal proceedings leading
up to this hearing. He did not send in a JET2 form in response to the JET1 claim forms, did not
respond to any of the letters sent to him by the secretary to the tribunal, and did not attend the
previous hearing. Nonetheless, we agreed that we would proceed with the case; it would have
been unacceptable to have adjourned because the applications were made some considerable
time ago.
2 The complainants worked for the Respondent, who is a building sub-contractor, as
carpenters. Mr Gregory was taken on around November 2005 and Mr Ogden in February 2006.
Each signed an identical employment contract in September 2006, but they were not given
copies to retain.
Each complainant says that he was told by Mr Cronin on Thursday 21stDecember 2006 that
they should not report for work the next day, which was the last working day before the
Christmas holiday; they then had their Christmas holidays and reported to the site on 3rd
January 2007. They were told to telephone Mr Cronin who told them that he did not have any
work for them, although the complainants stated that there was work. Both complainants then
decided to find themselves other jobs.
3 Mr Gregory and Mr Ogden complain that they were unfairly dismissed, were not
given notice or paid in lieu, and were not paid for bank holidays. Mr Ogden also claims for
half a days pay in respect of a Saturday morning he worked in December.
4 Mr Cronin produced copies of the contracts of the complainants. They consist of a four
page “Written statement of employment terms D.P. Cronin”, each of which was signed twice
by the complainant and the Respondent, and a five page “Staff handbook” which states “This
handbook sets out the employment policies, rules and procedures of D.P. Cronin These are
non contractual and maybe varied by the management. You will be advised of any
amendments”
The written statement obviously contains the most important terms. Paragraph 1.2
states “No alterations can be made to this contract of employment without the agreement of
both parties to the contract.” It also states the rate of pay, that the normal hours of work are 48
hours per week, that notice of termination has to be “in accordance with employment law….”.
79
Mr Cronin drew our attention to paragraph 10.4 of the handbook which provides
“From time to time it may become necessary for the employer to lay employees off on a
temporary basis due to a shortage of work. This may avoid a possible permanent redundancy.
The employer reserves the right to advise the employee in advance if they will not be required
to work for a specified short term period. The employer also reserves the right not to pay the
employee for the period of lay off.”
5 We find that the complainants were permanent full time employees; there was no
argument to the contrary. However, we have had to decide what effect, if any, paragraph 10.4
of the handbook has, for Mr Cronin says that this is what he was doing when he told them
both before and after Christmas that he did not have work for them; he was laying them off.
6 Mr Cronin produced two letters from contractors for whom he was working, both
casting doubt on the competence and reliability of the complainants. Mr Cronin said that he
had verbally told both complainants of these complaints but had never put anything in
writing; as a self-employed sub-contractor, he did all the administration himself and did not
have time for such letters and paperwork. We are not prepared to attach weight to these letters,
because (i) the letter purportedly from F. Nicholson & Son Ltd was, Mr Cronin told us, typed
by a surveyor used by Mr Cronin at Mr Cronin‟s dictation, (ii) both letters were dated June
2007, long after the events in question, (iii) we would have wanted better evidence of a matter
such as this.
Mr Cronin told us that he did not dismiss the complainants; he would have taken them
on, had there been the work, albeit on more stringent terms as to their work.
We find that Mr Cronin did dismiss the complainants in circumstances in which he
was not entitled to do so. By not paying the complainants he was in breach of contract, and
they were constructively unfairly dismissed. However because the claimants application form
was submitted outside of the time limits as prescribed in Article 76(2)(a) of the Employment
(Jersey) Law 2003 their claim is outside the jurisdiction of the Tribunal and no award is made
in respect of their dismissal.
7 We have considered paragraph 10.4 of the handbook, and we have decided that it does
not form part of the contract of employment. A provision that an employer may for a short
time dispense with the services of an employee without pay would be a fundamental
contractual term; such a term should be brought to the attention of the employee, not buried in
a paragraph in the middle of a handbook.
Further, the heading for the handbook which we have quoted in paragraph 4 above
expressly states that what is in it is non-contractual and may be unilaterally changed by the
employer. In the light of these facts, we find that paragraph 10.4 did not allow Mr Cronin to
lay off staff and not pay them; he had a contractual obligation to employ them, and pay them,
as described in the written statement of employment terms.
8 The contracts provided that the complainants were entitled to notice as stipulated in
the Employment Law, which is to say two weeks notice or two weeks pay in lieu of notice.
We therefore ORDER Mr Cronin to pay to each of Mr Gregory and Mr Ogden two
weeks basic pay at £560per week, which amounts to £1,120.00 each.
9 We find that Mr Cronin did not pay Mr Ogden for the half days work on a Saturday in
December 2006, and therefore ORDER Mr Cronin also to pay to Mr Ogden £56.00.
10 Both Mr Gregory and Mr Ogden should have been paid for the three bank holidays
over Christmas. At £112.00 per day that amounts to £336.00 each.
11 Mr Cronin should have given to each of the complainants a copy of his contract, but in
the circumstances we do not order the payment of a fine.
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12 This means that Mr Cronin must pay to:-
Mr Gregory £1,120.00
£336.00
Total £1,456.00
Mr Ogden £1,120.00
£336.00
£56.00
Total £1,512.00
13 The contract which Mr Cronin produced for signature by the complainants has been
carefully drafted; it is a full and detailed document. However, it is clear to us that Mr Cronin
used it merely in order to comply with the legal requirement in Part 2 of the Employment Law,
and with no intention of applying its terms. He made the complainants sign it in a hurry, and
they did not know precisely what they were signing; he did not give them copies. Mr Cronin
told us about complaints made about the work of the complainants, yet he did not apply the
disciplinary procedures described in the handbook. He seems to have known as little of the
contents of the agreements as the complainants.
The purpose of the requirement for written employment particulars is to describe as
precisely as is necessary the terms which govern the employer-employee relationship. This
should be for the benefit of both sides. If such a document is signed but either not read or not
understood is pointless.
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Jersey Employment Tribunal
Case Number: 0801-008/07
Applicant: Sonia De Gouveia
Respondent: Dr and Mrs T Houghton
Case Summary:
Hearing on 23 July 2007
Before: Mr David le Quesne, Chairman
Mrs M Curtis & Mr S Le Breton, Panel Members
Representation:
For Applicant: The Applicant did not appear
For Respondent: Dr T Houghton
The Applicant filed her application with the Employment Tribunal on Form JET 1 on the 8
January 2007.
The Respondents submitted their response on Form JET 2 on the 22nd January 2007.
On the 5th June 2007 the Tribunal Secretary issued a Notice of Hearing to both parties for a
Hearing scheduled to take place on the 28th June 2007 at 0930am.
Subsequently, at the Hearing before Mr. David le Quesne, Chairman, on the 28th June 2007 the
Applicant failed to appear and the Chairman issued Directions as follows:
1. I direct that the case shall be heard by me sitting alone on Wednesday 11th July at 10.30 a.m.
2. I direct that the only issues to be tried shall be:
a. Whether or not written particulars were provided pursuant to article 6 of the Law;
b. Whether the agreement between the parties included a term that the respondents
would pay the Applicant's social security;
c. What period of notice, if any, applied and was given;
d. Whether the Applicant was unfairly dismissed;
e. Matters arising from the above.
No other claims shall be heard unless the Chairman gives consent.
3 By 10.00am on Monday 9th July the Applicant and the Respondents shall provide to the
secretary to the Tribunal:
a. A list of witnesses to be called, with a note of each witnesses evidence;
b. Copies of all documents which they will want the Tribunal to see;
c. A brief note of what they say about each of the matters listed as 2 „a‟ to „e‟ above.
In the event the Hearing planned for the 11th July 2007 was postponed due to the
unavailability of the Chairman and a new date was fixed.
On 2nd July, the Tribunal Secretary issued a Notice of Hearing for the parties to attend a
hearing on the 23rd July together with a copy of the Chairman‟s Directions. (see above)
Subsequently, at the Hearing on Monday 23rd July 2007 the Applicant again failed to appear
and the Tribunal therefore dismissed her application.
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Jersey Employment Tribunal
Case Number: 2202-039/07
Applicant: Miss A M Gagat
Respondent: Mezzaluna Restaurant Ltd
Hearing on 23 July 2007
Before: Mr David le Quesne, Chairman
Mrs M Curtis and Mr S Le Breton, Panel members
Representation:
For Applicant: The Applicant did not appear
For Respondent: The Respondent did not appear
The Applicant filed her Form JET 1 on 22nd February 2007 claiming unfair dismissal and non
payment of wages against the Respondent.
On the 7 March 2007, the Secretary to the Tribunal wrote to the registered office of the
Respondent informing them of the complaint made and enclosed a Form JET 2, Employers
Response.
The Tribunal Secretary issued a Reminder, dated 24th April 2007, that the Respondent had
filed to return their Form JET 2 and allowed them until 14th May 2007 to do so.
In that letter it was made clear to the Respondent that:-
„Failure to complete and return the form may result in the Tribunal hearing the case
(provisionally set for 5th June 2007 at 0930am) and making an award to the applicant in your
absence as in effect the Tribunal will assume that you are not resisting the claim‟.
In the event no response was received from the Respondent and the Tribunal Secretary sent a
recorded delivery letter, dated 22nd May 2007 to the Respondent at their registered office, Flat
4, Le Hurel Court, La Pouquelaye, St Helier stating:
„As I have not received a formal response from you I will refer the matter to the Chairman who
may decide to issue a default Award against you.
Failure to complete and return the form may result in the Tribunal hearing the case
(provisionally set for 5th June 2007 at 0930am) and making an award to the applicant in your
absence as in effect the Tribunal will assume that you are not resisting the claim‟.
Neither the Applicant nor the Respondent attended the Hearing set for the 5th June 2007 nor a
second hearing arranged for the 21st June 2007.
In view of the above the Chairman directed the Secretary to write to both parties informing
the Applicant: that if she did not attend a Hearing on the 23 July 2007 the case would be
dismissed. The Respondent was also advised that: failure to attend may result in the matter
being heard in their absence. Both letters were dated 3 July 2007.
Subsequently, at the Hearing on Monday 23rd July 2007 neither the Applicant nor the
Respondent attended and the Tribunal therefore dismissed the application.
83
Jersey Employment Tribunal
Case Number: 0910170 / 06
Applicant: Miss Anita Cotillard
Respondent: Apex Trust Company Limited
Case Summary: Unfair dismissal by reason of redundancy
Hearing on: 14th May 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman
Mr Stewart Mourant and Mr Alan Hall, Panel Members.
Representation:
For Applicant: Miss Cotillard represented herself
For Respondent: Miss Sandra Bisson, Managing Director
Mr Richard Gallichan, Compliance Director
Witnesses:
For Applicant: Mrs Veronica O‟Donnell
Miss Susan Etienne
For Respondent: Mrs Helen James
Miss Karyn Bidmead
The Facts
1. The Applicant was employed by the Respondent („Apex‟) on 12th April 1999 as an office
administrator. Her duties were varied but basically involved maintaining an efficient
filing system and providing office support services as required. Miss Cotillard always
received outstanding appraisals for her work in the office and had no history of
disciplinary proceedings or prolonged sick leave or other absence.
2. Following the withdrawal of continued financial support by one of its shareholders in
December 2005, Apex was subject to a management buy out of those shares in order to
ensure its continued existence. A new shareholder was introduced to Apex and Douglas
Macintosh, Raymond O‟Reilly and Richard Gallichan also invested in the Company. The
management buy out was completed between February and June 2006. At the end of this
process, Douglas Mackintosh was the Managing Director and Finance Director of Apex,
Raymond Reilly was the Business Development Director and Richard Gallichan was the
Director in charge of Compliance. The directors were all aware that Apex was in
financial difficulties and agreed that the operation of the Company needed to be
reviewed and its costs firmly controlled over the next 18 months or so.
3. As part of an agreed initiative by the directors to obtain new business, Mr Gallichan
introduced Susan Bisson to the company. Miss Bisson‟s role was to market the
Company, bring in new business and contribute her experience of the finance industry
to the board of directors. Miss Bisson joined Apex as a director designate with effect
from 18th April 2006.
4. Unfortunately within a few weeks of starting at Apex, Miss Bisson broke her leg very
badly and was off work until July 2006. Even at this time Miss Bisson was still
undertaking daily physiotherapy for the injuries to her leg. This treatment is still
continuing. On 14th July 2006 the directors held a board meeting to which Miss Bisson
was invited. This was the first time that Miss Bisson had seen Apex‟s management
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accounts and she immediately expressed concern about the financial position of the
Company. It was obvious to her that the Company was overstaffed for the volume of
business it conducted. Also the salaries appeared higher than the average paid in the
industry (this was later proven correct by a survey of salaries conducted by a local
recruitment company). Miss Bisson and Mr Gallichan agreed that the Company could
not afford to sustain this level of salaries. At a previous board meeting Mr Gallichan had
suggested that the directors reduce their salaries but Mr Macintosh and Mr O‟Reilly had
rejected this proposal. Mr Gallichan‟s co-directors did not share his view that the salary
bill needed to be cut and in fact at the July 2006 board meeting, voted to increase the
staff‟s pay with a cost of living rise.
5. The next meeting of the board of directors of Apex was held off-site on 11th August 2006.
It had already been decided that staff restructuring and possible reductions would be
discussed. At the meeting Mr Macintosh also disclosed to the directors that the business
was doing so badly that
…………………………………………………………………………….. Again Mr Macintosh
was reluctant to make staff redundant and he and Mr O‟Reilly refused to take a cut in
salary.
6. However it was obvious to the directors that cut backs needed to be made and in all
likelihood staff would have to be made redundant. Various meetings of the directors
were held in July and August 2006 to discuss the situation. During one of these meetings
on 16th August 2006, Mr O‟Reilly received news that his mother had terminal cancer. Mr
O‟Reilly promptly made arrangements to go to the UK. Mr Macintosh went on holiday
from 16th August 2006 to 1st September 2006. However it was agreed by the directors on
16th August 2006 that redundancies needed to be made to save costs.
7. Apex did not have a redundancy policy at that time and the directors decided to use the
one on the JACS website called, „A Security of Employment and Redundancy Policy‟. Mr
Gallichan and Miss Bisson also visited JACS for advice on implementing this policy.
8. It was decided by the directors that Miss Bisson should decide upon the roles to be made
redundant. This was because she had not been at Apex for very long and could make an
objective decision.
9. On 22nd August 2006, Mr Gallichan and Miss Bisson on behalf of Apex issued a
statement to the staff called „A Notice of Company Restructure‟. This document warned
that the Company was not doing well financially and concluded that this, „will result in
a reduction of support staff as well as some changes in our working practices‟. Staff were
invited to speak to any of the directors of the Company before 31st August 2006, after
which date the restructuring plans would be finalised. The Notice also stated that the
directors would be speaking to, „the individual members of staff next week and will
make an announcement to all staff regarding the redundancies once that process is
complete‟. Evidence was heard that the directors did not speak to the members of staff
during the following week. At this time Mr Macintosh was on holiday, Mr O‟Reilly was
concerned with personal matters and only Miss Bisson and Mr Gallichan were in the
office. It is noted that Miss Bisson was not a director of the Company at this time and
was frequently away on marketing trips.
10. In the period to 31st August 2006 only four members of staff approached Mr Gallichan or
Miss Bisson with ideas for restructuring the Company. Miss Cotillard was not one of
these people and openly admitted in evidence that she had no suggestions to make.
11. Mr Gallichan and Miss Bisson were concerned that the Company was not moving on to
the next stage of the Redundancy Policy – that of informing the staff formally that
redundancies were inevitable and to confirm the selection criteria with staff. It was
obvious to them that the delay in receiving news was causing upset to the staff. However
Mr Macintosh felt that due to Mr O‟Reilly‟s personal circumstances, the staff would
85
understand and accept any delay. The Tribunal heard evidence that this was not the case
and indeed morale was low.
12. On 12th September 2006, the directors held a meeting in order to discuss the potential
redundancies. Four specific roles in the office were identified by the directors.
Unfortunately during this meeting Mr O‟Reilly took a telephone call to say that his
mother had died. Mr O‟Reilly immediately left the meeting, and it broke up with the
intention of recommencing the next day.
13. On the 13th and 14th September 2006, the Tribunal were informed that Mr Macintosh
called in ill with stress, and Mr O‟Reilly was in the UK. The staff had been told they
would be informed of the roles provisionally identified for redundancy by the end of the
week (15th September 2006). Mr Gallichan contacted Mr Macintosh at home who said
that he would not be in the office on 15th September 2006 and that Mr Gallichan was not
authorised to make an announcement to the staff on the redundancies in his absence. By
this time Mr Gallichan had been presented with the management accounts for August
2006 and
……………………………………………………………………………..............................................
............................................... In Mr Gallichan‟s opinion the four members of staff
identified for potential redundancy had to be informed as soon as possible. Mr
Gallichan called an EGM of the Company‟s shareholders to consider a resolution of no
confidence in Mr Macintosh as managing director. This meeting was scheduled for
Monday 18th September 2006.
14. On Friday 15th September 2006, Mr Gallichan met with the staff and discussed the
situation with them. The meeting became heated with staff claiming that the
Redundancy Policy had not been followed; Mr Gallichan disagreed with this assertion.
On being pressed by the staff Mr Gallichan confirmed that „secretarial, filing and
compliance roles‟ were being looked at for redundancy. Evidence was heard from Mr
Gallichan that privately he felt the affected staff should have been informed already of
their potential redundancy but his hands had been tied by Mr Macintosh.
15. At the Shareholders meeting held on 18th September 2006, Mr Macintosh resigned from
the Company. Mr O‟Reilly, Miss Bisson and Mr Gallichan agreed that the staff members
likely to be made redundant should be interviewed the next day and informed of their
selection and the reasons for it. Mr O‟Reilly asked to be excused from these meetings as
he had to fly back to the UK for his mother‟s funeral. Miss Bisson advised that she had a
physiotherapy appointment and would not be available until late morning.
16. Mr Gallichan informed the staff that he would meet those people at risk of losing their
job during the morning of 19th September 2006.
17. On his arrival at work at 8.45am on 19th September 2006, Mr Gallichan found all the staff
in early and the atmosphere tense. One member of staff had gone home because of an
alleged bullying incident. Mr Gallichan decided to wait until Miss Bisson came into
work before holding the interviews as with her present he would have an ally and a
witness to the conduct of those interviews. By 9.15am two members of staff had queried
with Mr Gallichan when the meetings would be held as the staff were restless. At
10.15am seven members of staff came into Mr Gallichan‟s office and demanded that the
meetings be held immediately and not on Miss Bisson‟s arrival. Mr Gallichan tried to
diffuse the situation with sympathy for their position but confirmed that he needed a
witness for the meetings. The staff became more aggressive and Mr Gallichan said he
did not wish to discuss the matter further. Mr Gallichan was informed by the staff that
no one would do any work until the meetings were held. The seven members of staff
then went into the board room and shut the door. On enquiry by Mr Gallichan they
confirmed that they were not prepared to do any work. Evidence was heard from Mr
Gallichan that the telephones were ringing and no work was being produced in the
office.
86
18. Mr Gallichan gave evidence that he felt very pressurised by the situation especially as he
was on his own. He told the Tribunal that he felt that he had „no option‟ but „to give in to
staff demands and prepare the letters of redundancy‟, which he did. On Miss Bisson‟s
arrival in the office, Mr Gallichan updated her of the situation and she agreed that they
should proceed to confirming the redundancies and issue the letters accordingly in order
to calm the situation.
19. Subsequently the four members of staff identified for redundancy were interviewed by
Mr Gallichan with Miss Bisson in attendance. Each such member of staff was handed
their redundancy letter giving them their notice and asked if they had queries. Miss
Cotillard was interviewed with Miss O‟Donnell present as a friend and queried the
period of her notice which she believed to be incorrect. She was then escorted off the
premises. Miss Cotillard confirmed that there was no discussion of her circumstances
and or the reasons for her selection.
20. On 20th September 2006, in accordance with her dismissal letter Miss Cotillard appealed
against her dismissal to the directors of Apex. Mr Gallichan replied on the 2nd October
2006. Whilst his explanation of the basis of her selection for redundancy was very
detailed, he did not call her in to the office or enquire whether she had any particular
points regarding her redundancy to put to the directors. By Mr Gallichan‟s reply of 2nd
October 2006, the Company‟s decision to make Miss Cotillard redundant was final.
21. Miss Cotillard lodged a complaint of unfair dismissal with the Employment Tribunal on
9th October 2006. Miss Cotillard also claimed that she was owed a further 2 week‟s notice
and 2 week‟s payment into her pension fund.
The Unfair Dismissal Claim
The Law
22. Article 64 of the Employment (Jersey) Law 2003 („the Law‟) requires an employer to show
the reason for the dismissal when fairness or unfairness of that dismissal is being
considered. Some reasons are considered potentially fair reasons and these are set out in
Article 64 (2). Redundancy is a potentially fair reason for dismissal. In any event an
employer is required by virtue of article 64 (4) to have acted reasonably in treating such
reason as sufficient reason for dismissal and to have acted in accordance with equity and
the substantial merits of the case.
23. Articles 64 (1) (2) and (4) are set out as follows:
64 General
(1) In determining for the purposes of this Part whether the dismissal of an
employee is fair or unfair, it shall be for the employer to show –
(a) the reason (or, if more than one, the principal reason) for the dismissal; and
(b) that it is either a reason falling within paragraph (2) or some other
substantial reason of a kind such as to justify the dismissal of an employee
holding the position which the employee held.
(2) A reason shall fall within this paragraph if it –
(a) relates to the capability or qualifications of the employee for
performing work of the kind which he was employed by the employer to
do;
(b) relates to the conduct of the employee;
(c) is that the employee was redundant; or
87
(d) is that the employee could not continue to work in the position
which he held without contravention, (either on his part or on that of his
employer) of a duty or restriction imposed by or under an enactment.
(3) …….
(4) Where the employer has fulfilled the requirements of paragraph (1), the
determination of the question whether the dismissal is fair or unfair (having
regard to the reason shown by the employer) shall –
(a) depend on whether in the circumstances (including the size and
administrative resources of the employer‟s undertaking) the employer
acted reasonably or unreasonably in treating it as a sufficient reason for
dismissing the employee; and
(b) be determined in accordance with equity and the substantial merits
of the case.
(5) …..
24. Article 64 (5) refers to situations which are considered by the Law to be automatically
unfair dismissals, and they do not apply in this case.
25. Miss Cotillard submitted that redundancy was not the real reason for her dismissal but
that instead it was based on Mr Gallichan‟s personal dislike of her.
26. Article 2 (1) of the Law defines Redundancy as follows:
Redundancy
(1) For the purposes of this Law an employee who is dismissed shall be
taken to be dismissed by reason of redundancy if the dismissal is wholly or
mainly attributable to –
(a) the fact that his employer has ceased or intends to cease –
(i) to carry on the business for the purposes of which the employee was
employed by him, or
(ii) to carry on that business in the place where the employee was so
employed, or
(b) the fact that the requirements of that business –
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place
where the employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.
27. The Tribunal heard evidence from Mr Gallichan and Miss Bisson that Apex
………………………………………….As outlined in paragraphs 2 to 5 above this situation
had existed for some time. Mr Gallichan informed the Tribunal that by September 2006
… …………
…………………………………………………………………………………………………………
………….. The Tribunal were informed that the directors had decided at their board
meeting on 11th August 2006 that staff restructuring and reductions were required in
order to reduce costs (see paragraph 5 above).
28. The directors clearly believed that in accordance with Article 2(1) (b) (i), „the
requirements of [Apex] for employees to carry out work of a particular kind … had
ceased or diminished‟.
29. Some evidence was heard from Miss Cotillard and Miss O‟Donnell that Mr Gallichan
did not get along with Miss Cotillard and unfairly criticised her work. The Tribunal
finds the evidence produced in support of this assertion extremely flimsy and not
88
extraordinary in an office environment. However, the evidence heard of the financial
difficulties of Apex was comprehensive and robust. In the circumstances the Tribunal
finds that the reason Miss Cotillard was dismissed was because of the redundancy of her
position as Office Administrator at Apex.
30. As stated in paragraph 22 above, redundancy is a potentially fair reason for dismissal.
Accordingly, in this case the Tribunal has considered whether Apex acted reasonably or
not in treating redundancy as being sufficient reason for dismissal and by looking at the
equity and substantial merits of the case.
31. In addition, in accordance with the findings of the Deputy Bailiff in Voisin v Brown
[2007] JRC 47 para 28, the Tribunal must also:
„ … concentrate not on whether the employer‟s decision or the procedure adopted by him
was wrong but on whether it was so wrong as to fall outside the band of reasonable
actions on the part of a reasonable employer‟.
Decision
32. Having considered the facts of this case and the law to be applied to them, the Tribunal
finds as follows.
33. A redundancy policy sets out the rules of engagement of employer and employee in a
redundancy situation. In this case the directors of Apex adopted the whole of the JACS
„Security of Employment and Redundancy Policy‟. It does not matter that they did not
write the policy themselves or alter or amend any part to suit their business. What is
important is that the employer told its employees that it was going to use this policy. The
directors of Apex are therefore expected to be familiar with the Policy and to follow it. In
turn the staff are entitled to be able to rely upon it.
34. The Policy requires an initial warning of redundancy to be made. The Tribunal finds
that this was satisfied by the contents of the Notice of Company Restructure issued to
the staff on the 22nd August 2006.
35. The Policy said that the selection process would be based on a scoring system of staff
profiles and employment history. In fact Apex had deviated from this selection process
right from the beginning because the directors had decided to make their selection based
on the commercial need to lose superfluous roles in the business. This (new) selection
process was based on an overriding need to save money by cutting back on salaries.
36. There is nothing wrong with a selection process based on roles, especially here where
Miss Cotillard‟s job for example, was the only one in a particular category so no
comparison of employee‟s functions (using the system described in the JACS
redundancy policy) could be made. The Tribunal notes that the Policy issued to the
directors of Apex does not contain guidance as to how to treat employees in a pool of
one. However, the Company did not communicate this change in the selection process to
the staff. This is wrong. At this point the staff were relying on the directors to follow the
JACS model, and as Miss Cotillard told the Tribunal, she was feeling confident as she
expected to score well on the points system.
37. The Tribunal notes that there is reference to the appraisal of roles as a means of selection
in the 22nd August 2006 letter but considers that it was not sufficiently prominent for
staff to think that the points system attached to the Policy, and which covers two pages,
would not apply and that in fact the Policy had been altered by the directors.
38. The directors asked for ideas to avoid redundancies. This is recognised by the Policy.
However only four people came forward with suggestions. The Tribunal would have
expected the directors to be proactive at this stage and to have suggested to staff that they
89
think about job sharing, voluntary redundancies, short term wage cuts etc. to get the
conversation started between management and staff on this subject.
39. The Tribunal notes that the Policy does not include a time frame, although the Tribunal
would not expect this process to be unreasonably long. In this case the initial
consultation started by the 22nd August 2006 letter expired on Thursday 31st August 2006.
The Tribunal would have thought it reasonable for the directors to have met in order to
make their initial decision on the redundancies during the next week, commencing by
Monday, September 4th 2006. No one wants to be kept waiting in these circumstances
which are stressful for all concerned, including the management of a business.
40. Accordingly, the Tribunal would have expected the next stage in the Policy, that of
individual meetings with the employees preliminarily marked out for redundancy, to
have been held early in the week of 11th September 2006. This did not happen, and by
Friday 15th September 2006 the staff at Apex were understandably restless and
demoralised.
41. The Tribunal has looked at the reasons for this delay:
 Miss Bisson was frequently out of the office marketing the business. In any event
she was not a director of Apex at this time
 Mr O‟Reilly was absent from the office for long periods due to his mother‟s illness
 Mr Macintosh was on holiday until 1st September 2006 and then sick on the 13th,
14th and 15th September 2006. Further, he forbade Mr Gallichan from dealing with
this matter in his absence.
 The Board meeting of 12th September 2006 was adjourned because of the sad news
received by Mr O‟Reilly, and due to Mr Macintosh‟s absence, the meeting was not
reconvened.
42. The Tribunal notes that Mr Gallichan and Miss Bisson felt that the delay in informing
the relevant staff of their redundancy, was unacceptable, and can accept that the staff
were becoming more hostile to the management. The Tribunal was pleased that Mr
Gallichan decided to call a staff meeting on the 15th September 2006 to field questions on
this topic, and notes that he was the only member of management present. It is clear to
the Tribunal that Mr Gallichan in fact disclosed the new selection process to the staff at
that meeting by stating that they would be looking at „secretarial, filing and compliance
… roles‟ for redundancy. The Tribunal also notes that Miss Bisson had informed Mrs
Karen Hibbs and Mrs Aileen Clark that „secretarial and filing‟ were being considered for
redundancy. This conversation was reported back to Miss Cotillard. Evidence was
presented to the Tribunal that following the announcement made by Mr Gallichan
referred to in paragraph 44 below, someone on the staff said that the announcements
should be immediate in order to put Miss Cotillard „out of her misery‟. Thus it is not
unreasonable to assume that Miss Cotillard was aware that her role was potentially due
to be made redundant.
43. At the shareholders meeting of the 18th September 2006 Mr Gallichan was instrumental
in getting Mr Macintosh to resign as managing director. At that meeting a decision was
also taken to inform the relevant staff the next day of their possible redundancy. Mr
O‟Reilly had to return to the UK and Mr Macintosh had in fact resigned from Apex. Miss
Bisson was not a director of the company at this time. This left just Mr Gallichan to deal
with this matter. Mr Gallichan admitted to the Tribunal that he had no HR experience
and was inexperienced in such matters. Also as a Compliance Director, he was used to
taking a less managerial role in the affairs in the business.
44. On the 18th September 2006 Mr Gallichan informed the staff that the meetings would be
held „during the morning‟ on the next day. He gave no specific time which with
hindsight was a mistake.
90
45. The Tribunal can understand why Mr Gallichan as the sole representative of the
management wanted to wait for Miss Bisson to come into work before conducting the
interviews. It is not unreasonable to require a witness to these conversations.
46. The Tribunal is aware that the tension was building up in the office. This was
volunteered by Mr Gallichan and not denied by Miss Cotillard. The Tribunal heard
evidence that by 10.15am, seven members of staff had crowded into Mr Gallichan‟s
office demanding to be told the decision. These seven members of staff then went to the
Board Room shut the door and having taken advice from JACS, issued a joint grievance
letter signed by each one of them. In the meantime no one was working – this in itself
could be considered a disciplinary offence in the opinion of this Tribunal.
47. The Tribunal heard evidence that Mr Gallichan is inexperienced………… ………
…………..in handling people. The employee in charge of HR was one of the people in
the Board Room so he could not ask her for advice. Both Miss Cotillard and Mr
Gallichan presented evidence that the staff were demanding to have their redundancy
meetings immediately. However, Miss Cotillard said that she wanted a consultation
meeting where she would be advised of her redundancy and invited to reply. Mr
Gallichan however interpreted this demand as being one for a meeting to be held for the
purpose of identifying who was going to be made redundant, and he prepared letters of
redundancy. When Miss Bisson came in to work she agreed with this interpretation of
events and they both decided to issue the redundancy letters at the interviews. Both Miss
Bisson and Mr Gallichan said that they thought it was what the staff wanted.
48. Miss Cotillard gave evidence that she saw the letters of redundancy prepared and on Mr
Gallichan‟s desk by 09.30am on the 19th September 2006. Mr Gallichan said that this was
not correct because he typed them himself whilst his secretary was in the board room
with the other members of staff on that day. Mr Gallichan denied that the Company was
always going to miss the second consultation stage of the Policy. In fact Miss Bisson
gave evidence that the intention was to leave one week following the second
consultation stage before the redundancies were finally announced.
49. If Miss Cotillard‟s version of events is believed, it would mean that the second stage of
the redundancy – the formal consultation with individual staff – as outlined in the Policy
was effectively missed out by Apex, and thus Miss Cotillard had no right of reply to her
nomination.
50. However, if Mr Gallichan‟s version of events is believed; that the staff‟s actions were so
exaggerated and hostile that he thought that they wished to skip the second individual
consultation stage and go straight to dismissal in order to get it over with, then missing
out this stage becomes understandable.
51. On hearing the evidence in this case the Tribunal is of the opinion that on the 19th
September 2006 the staff „ganged up‟ on a sole inexperienced director forcing him to
make a decision on the redundancies. There should be some understanding that the
mood and actions of the staff were extremely stressful to the management of Apex. This
stressful situation, in the opinion of this Tribunal, led to a misunderstanding by Mr
Gallichan of the desired outcome of the redundancy meetings to be held that morning.
The Tribunal is mindful that by this time all communications between the parties had
broken down and the staff were acting in a most unprofessional manner. It is noted by
the Tribunal that of the nine staff in work that morning seven were involved in this
dispute. This misunderstanding by Mr Gallichan is, in the opinion of the Tribunal,
completely understandable in the circumstances of this case and the Tribunal do not
find the effective missing out of the individual consultation stage in the redundancy
policy unreasonable in these particular and extreme circumstances.
52. The Tribunal wish to point out that if the staff had not rebelled in this manner and the
individual consultation stage had still been missed out by Mr Gallichan when
91
conducting interviews on the 19th September 2006, the Tribunal would have most
certainly found such omission and deviation from the Policy to be unreasonable.
53. The Tribunal are mindful that Miss Cotillard‟s appeal against her redundancy was not
heard by the directors. This stage is clearly anticipated in the Policy and both good
practice and fairness demands that it be included in any dismissal process. Basically
Miss Cotillard‟s request for an appeal was ignored by Mr Gallichan in his letter of reply
dated 2nd October 2006. The lack of an appeal always troubles the Tribunal. However, in
this case it has asked itself what Miss Cotillard missed by not having an appeal, apart
from her side of the dismissal not being heard. There is no doubt that Mr Gallichan‟s
reply in his letter answered Miss Cotillard‟s question in full as to why she had been
selected. Also it was very clear to the Tribunal from the evidence heard that certain jobs
had to go at Apex as the company had to save money ……………
……………………………………………… It was evident to the Tribunal that Miss
Cotillard‟s role had no comparison within Apex. Miss Cotillard suggested that she could
have stayed on to do some book-keeping or typing for the company but that is simply
missing the point: the exercise had nothing to do with her as an employee, the company
had to save her salary and the role of the office administrator was one which it could no
longer afford to keep. Again, better communication from the management would have
got this fundamental point across to its employees. It was also apparent to the Tribunal
that Miss Cotillard had no obviously transferable skills within the business. Her role
and duties were unique; indeed even the job description of her duties prepared by Miss
Cotillard for her C.V. and included in her bundle did not refer to any skills she
possessed which would enable her to be compared to employees in the secretarial or
accounting departments of Apex.
Conclusion
54. Apex were wrong to change the selection criteria for the selection of staff for redundancy
from that described in its redundancy policy. If the company had adhered to its original
plan to hold the individual consultation meetings in the second week of September 2006
many of the problems would not have arisen. Miss Cotillard could also have been
informed at that time about the change in the selection criteria applied to her. However,
the Tribunal is of no doubt that by the 19th September 2006, Miss Cotillard was aware
that her job was being considered for redundancy. Accordingly the change in selection
procedure whilst wrong did not actually affect Miss Cotillard‟s awareness of the
likelihood of her losing her job. Also the JACS Policy itself did not contain any guidance
as to how to apply the selection criteria where just one person fulfils a role and no
comparison can be made. Accordingly Apex looked at the role as a means of saving
expense only and not beyond it. The Tribunal have chosen to believe Mr Gallichan that
the poor behaviour of the staff led him to believe that they wished the redundancy
letters to be issued on that day, effectively missing out the second stage. The Tribunal do
not find this misunderstanding unreasonable in the particular circumstances. Apex were
wrong not to have offered an appeal against the decision once made, but the Tribunal
have taken a pragmatic view of what, in this case, could have been changed even if the
appeal had been heard.
55. However this case has to be looked at bearing in mind also its special circumstances
including the poor leadership from management as well as the unforeseen problems and
difficulties faced by Mr O‟Reilly. It seems that Mr Gallichan finally had no choice but to
take over the procedure himself. The Tribunal accepts that Apex is a small business and
Mr Gallichan was inexperienced in these matters. The Tribunal is of the opinion that Mr
Gallichan did what he thought was best in very difficult circumstances which included
………………………………………………………………………… ……………………………….
56. For these reasons, and looking at the situation as a whole, the Tribunal does not find
either the selection of Miss Cotillard‟s role for redundancy or the actions of Mr
92
Gallichan as a director of Apex in implementing the redundancy policy, to be
unreasonable and accordingly does not find the dismissal of Miss Cotillard to be unfair.
The Claim for unpaid notice
57. Miss Cotillard claimed in her JET 1 that she had only received 6 weeks notice and not the
8 weeks notice due to her pursuant to article 56 (1) (d) of the Law as she had been
continuously employed for more than 5 years but less than 10 years. The Tribunal was
informed that in fact Miss Cotillard did receive the extra 2 weeks notice due to her from
Apex after her JET 1 form was filed. However the Tribunal noted that the amount of her
weekly wage payable for the period of her notice was incorrectly calculated by Apex. A
further calculation of the amount payable by Apex to Miss Cotillard in respect of the
period of her notice was conducted by the Tribunal at the Hearing in consultation with
the parties and the sum of £36.58 gross was found to be outstanding.
The Claim for unpaid contributions to Miss Cotillard‟s pension plan.
58. In her Form JET 1 Miss Cotillard maintained that as she had not received 2 weeks of the
notice due to her, 2 weeks contributions from her salary to her pension plan remained to
be made by Apex. This claim is pursuant to Article 86 of the Law. The Tribunal was
informed that in fact this sum had been paid to Miss Cotillard‟s pension plan by Apex
and accordingly this claim was not dealt with by the Tribunal.
Schedule of Awards.
1. Article 56. In respect of notice pay outstanding, balance due = £36.58 gross
93
Jersey Employment Tribunal
Case Number: 2310186 / 06
Applicant: Miss Jayne Gruchy
Respondent: Apex Trust Company Limited
Case Summary: Unfair dismissal by reason of redundancy
Hearing on: 17th May 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman
Mr Stewart Mourant and Mr Alan Hall, Panel Members.
Representation:
For Applicant: Miss Gruchy represented herself
For Respondent: Mr Richard Gallichan, Compliance Director
Witnesses:
For Applicant: Miss Susan Etienne
For Respondent: Miss Sandra Bisson, Managing Director
The Facts
1. The Applicant was employed by the Respondent („Apex‟) on 2nd April 2001. Miss
Gruchy‟s responsibilities included secretarial and administrative support to the Trust
Manager, Susan Etienne and to the Senior Trust Officer. Miss Gruchy also carried out
payments for trust officers and assisted Raymond O‟Reilly, a director of the company, as
required whenever his secretary was unavailable. Miss Gruchy also assisted in reception
and the accounts department as required. Miss Gruchy always received outstanding
appraisals for her work and had no history of disciplinary proceedings or prolonged sick
leave or other absence.
2. Following the withdrawal of continued financial support by one of its shareholders in
December 2005, Apex was subject to a management buy out of those shares in order to
ensure its continued existence. A new shareholder was introduced to Apex and Douglas
Macintosh, Raymond O‟Reilly and Richard Gallichan also invested in the Company. The
management buy out was completed between February and June 2006. At the end of this
process, Douglas Mackintosh was the Managing Director and Finance Director of Apex,
Raymond Reilly was the Business Development Director and Richard Gallichan was the
Director in charge of Compliance. The directors were all aware that Apex was in
financial difficulties and agreed that the operation of the Company needed to be
reviewed and its costs firmly controlled over the next 18 months or so.
3. As part of an agreed initiative by the directors to obtain new business, Mr Gallichan
introduced Susan Bisson to the company. Miss Bisson‟s role was to market the
Company, bring in new business and contribute her experience of the finance industry
to the board of directors. Miss Bisson joined Apex as a director designate with effect
from 18th April 2006.
4. Unfortunately within a few weeks of starting at Apex, Miss Bisson broke her leg very
badly and was off work until July 2006. Even at this time Miss Bisson was still
undertaking daily physiotherapy for the injuries to her leg. This treatment is still
continuing. On 14th July 2006 the directors held a board meeting to which Miss Bisson
was invited. This was the first time that Miss Bisson had seen Apex‟s management
accounts and she immediately expressed concern about the financial position of the
Company. It was obvious to her that the Company was overstaffed for the volume of
business it conducted. Also the salaries appeared higher than the average paid in the
industry (this was later proven correct by a survey of salaries conducted by a local
94
recruitment company). Miss Bisson and Mr Gallichan agreed that the Company could
not afford to sustain this level of salaries. At a previous board meeting Mr Gallichan had
suggested that the directors reduce their salaries but Mr Macintosh and Mr O‟Reilly had
rejected this proposal. Mr Gallichan‟s co-directors did not share his view that the salary
bill needed to be cut and in fact at the July 2006 board meeting, voted to increase the
staff‟s pay with a cost of living rise.
5. The next meeting of the board of directors of Apex was held off-site on 11th August 2006.
It had already been decided that staff restructuring and possible reductions would be
discussed. At the meeting Mr Macintosh also disclosed to the directors that
………………………………………………………………..
……………………………………………………………………………. Again Mr Macintosh
was reluctant to make staff redundant and he and Mr O‟Reilly refused to take a cut in
salary.
6. However it was obvious to the directors that cut backs needed to be made and in all
likelihood staff would have to be made redundant. Various meetings of the directors
were held in July and August 2006 to discuss the situation. During one of these meetings
on 16th August 2006, Mr O‟Reilly received news that his mother had terminal cancer. Mr
O‟Reilly promptly made arrangements to go to the UK. Mr Macintosh went on holiday
from 16th August 2006 to 1st September 2006. However it was agreed by the directors on
16th August 2006 that redundancies needed to be made to save costs.
7. Apex did not have a redundancy policy at that time and the directors decided to use the
one on the JACS website called, „A Security of Employment and Redundancy Policy‟. Mr
Gallichan and Miss Bisson also visited JACS for advice on implementing this policy. It
was decided by the directors that Miss Bisson should decide upon the roles to be made
redundant. This was because she had not been at Apex for very long and could make an
objective decision.
8. On 22nd August 2006, Mr Gallichan and Miss Bisson on behalf of Apex issued a
statement to the staff called „A Notice of Company Restructure‟. This document warned
that the Company was not doing well financially and concluded that this, „will result in
a reduction of support staff as well as some changes in our working practices‟. Staff were
invited to speak to any of the directors of the Company before 31st August 2006, after
which date the restructuring plans would be finalised. The Notice also stated that the
directors would be speaking to, „the individual members of staff next week and will
make an announcement to all staff regarding the redundancies once that process is
complete‟. Evidence was heard that the directors did not speak to the members of staff
during the following week. At this time Mr Macintosh was on holiday, Mr O‟Reilly was
concerned with personal matters and only Miss Bisson and Mr Gallichan were in the
office. It is noted that Miss Bisson was not a director of the Company at this time and
was frequently away on marketing trips.
9. In the period to 31st August 2006 only four members of staff approached Mr Gallichan or
Miss Bisson with ideas for restructuring the Company. Miss Gruchy was not one of
these people but said in evidence that she spoke to Mr Macintosh and Mr O‟Reilly in
early September 2006 about the situation but they were dismissive of her ideas.
10. Mr Gallichan and Miss Bisson were concerned that the Company was not moving on to
the next stage of the Redundancy Policy – that of informing the staff formally that
redundancies were inevitable and to confirm the selection criteria with staff. It was
obvious to them that the delay in receiving news was causing upset to the staff. However
Mr Macintosh felt that due to Mr O‟Reilly‟s personal circumstances, the staff would
understand and accept any delay. The Tribunal heard evidence that this was not the case
and indeed morale was low.
95
11. On 12th September 2006, the directors held a meeting in order to discuss the potential
redundancies. Four specific roles in the office were identified by the directors.
Unfortunately during this meeting Mr O‟Reilly took a telephone call to say that his
mother had died. Mr O‟Reilly immediately left the meeting, and it broke up with the
intention of recommencing the next day.
12. On the 13th and 14th September 2006, the Tribunal were informed that Mr Macintosh
called in ill with stress, and Mr O‟Reilly was in the UK. The staff had been told they
would be informed of the roles provisionally identified for redundancy by the end of the
week (15th September 2006). Mr Gallichan contacted Mr Macintosh at home who said
that he would not be in the office on 15th September 2006 and that Mr Gallichan was not
authorised to make an announcement to the staff on the redundancies in his absence. By
this time Mr Gallichan had been presented with the management accounts for August
2006 and ………………………………………………………………………………..
…………………………………………………………………………………………...
………………………………………………. In Mr Gallichan‟s opinion the four members of
staff identified for potential redundancy had to be informed as soon as possible. Mr
Gallichan called an EGM of the Company‟s shareholders to consider a resolution of no
confidence in Mr Macintosh as managing director. This meeting was scheduled for
Monday 18th September 2006.
13. On Friday 15th September 2006, Mr Gallichan met with the staff and discussed the
situation with them. The meeting became heated with staff claiming that the
Redundancy Policy had not been followed; Mr Gallichan disagreed with this assertion.
On being pressed by the staff Mr Gallichan confirmed that „secretarial, filing and
compliance roles‟ were being looked at for redundancy. Evidence was heard from Mr
Gallichan that privately he felt the affected staff should have been informed already of
their potential redundancy but his hands had been tied by Mr Macintosh.
14. At the Shareholders meeting held on 18th September 2006, Mr Macintosh resigned from
the Company. Mr O‟Reilly, Miss Bisson and Mr Gallichan agreed that the staff members
likely to be made redundant should be interviewed the next day and informed of their
selection and the reasons for it. Mr O‟Reilly asked to be excused from these meetings as
he had to fly back to the UK for his mother‟s funeral. Miss Bisson advised that she had a
physiotherapy appointment and would not be available until late morning.
15. Mr Gallichan informed the staff that he would meet those people at risk of losing their
job during the morning of 19th September 2006.
16. On his arrival at work at 8.45am on 19th September 2006, Mr Gallichan found all the staff
in early and the atmosphere tense. One member of staff had gone home because of an
alleged bullying incident. Mr Gallichan decided to wait until Miss Bisson came into
work before holding the interviews as with her present he would have an ally and a
witness to the conduct of those interviews. By 9.15am two members of staff had queried
with Mr Gallichan when the meetings would be held as the staff were restless. At
10.15am seven members of staff came into Mr Gallichan‟s office and demanded that the
meetings be held immediately and not on Miss Bisson‟s arrival. Mr Gallichan tried to
diffuse the situation with sympathy for their position but confirmed that he needed a
witness for the meetings. The staff became more aggressive and Mr Gallichan said he
did not wish to discuss the matter further. Mr Gallichan was informed by the staff that
no one would do any work until the meetings were held. The seven members of staff
then went into the board room and shut the door. On enquiry by Mr Gallichan they
confirmed that they were not prepared to do any work. Evidence was produced from Mr
Gallichan that stated that the telephones were ringing and no work was being produced
in the office.
17. Mr Gallichan gave evidence that he felt very pressurised by the situation especially as he
was on his own. He told the Tribunal that he felt that he had „no option‟ but „to give in to
96
staff demands and prepare the letters of redundancy‟, which he did. On Miss Bisson‟s
arrival in the office, Mr Gallichan updated her of the situation and she agreed that they
should proceed to confirming the redundancies and issue the letters accordingly in order
to calm the situation.
18. Subsequently the four members of staff identified for redundancy were interviewed by
Mr Gallichan with Miss Bisson in attendance. Each such member of staff was handed
their redundancy letter giving them their notice and asked if they had queries. Miss
Gruchy was interviewed with Miss Etienne present as a friend. She was then escorted
off the premises. Miss Gruchy confirmed that there was no discussion of her
circumstances and or the reasons for her selection.
19. On 19th September 2006, in accordance with her dismissal letter Miss Gruchy appealed
against her dismissal to the directors of Apex. Mr Gallichan replied on the 2nd October
2006. Whilst his explanation of the basis of her selection for redundancy was very
detailed, he did not call her in to the office or enquire whether she had any particular
points regarding her redundancy to put to the directors. By Mr Gallichan‟s reply of 2nd
October 2006, the Company‟s decision to make Miss Gruchy redundant was final.
20. Miss Gruchy lodged a complaint of unfair dismissal with the Employment Tribunal on
23rd October 2006. Miss Gruchy also claimed that she was owed a further 2 week‟s notice
as she was only paid for 6 weeks notice and she is eligible to receive 8 weeks notice. The
Tribunal have also noticed a discrepancy in the calculation of Miss Gruchy‟s holiday pay
due to her and wishes to make an Order on this point.
The Unfair Dismissal Claim
The Law
21. The Tribunal are required to act in accordance with Article 64 of the Employment
(Jersey) Law 2003, („the Law‟) when assessing the fairness of a dismissal from work.
22. Paragraphs (1), (2) and (3) of Article 64 of the Law deal with establishing the reason for
the dismissal. In this case there is no disagreement between the parties that Miss Gruchy
was dismissed because she was redundant.
23. The Tribunal is then required, by Article 64 (4) of the Law to determine whether the
dismissal is fair or not. Article 64 (4) states as follows:
Article 64
(1) …
(2) …
(3) …
(4) Where the employer has fulfilled the requirements of paragraph (1), the
determination of the question whether the dismissal is fair or unfair (having
regard to the reason shown by the employer) shall –
(a) depend on whether in the circumstances (including the size and administrative
resources of the employer‟s undertaking) the employer acted reasonably or
unreasonably in treating it as a sufficient reason for dismissing the employee;
and
(b) be determined in accordance with equity and the substantial merits of the case.
24. In addition, in accordance with the findings of the Deputy Bailiff in Voisin v Brown
[2007] JRC 47 para 28, the Tribunal must also:
97
„ … concentrate not on whether the employer‟s decision or the procedure adopted
by him was wrong but on whether it was so wrong as to fall outside the band
of reasonable actions on the part of a reasonable employer‟.
Decision
25. Having considered the facts of this case and the law to be applied to them, the Tribunal
finds as follows.
26. A redundancy policy sets out the rules of engagement of employer and employee in a
redundancy situation. In this case the directors of Apex adopted the whole of the JACS
„Security of Employment and Redundancy Policy‟. It does not matter that they did not
write the policy themselves or alter or amend any part to suit their business. What is
important is that the employer told its employees that it was going to use this Policy. The
directors of Apex are therefore expected to be familiar with the Policy and to follow it. In
turn the staff are entitled to be able to rely upon it.
27. The Policy requires an initial warning of redundancy to be made. The Tribunal finds
that this was satisfied by the contents of the Notice of Company Restructure issued to
the staff on the 22nd August 2006.
28. The Policy said that the selection process would be based on a scoring system of staff
profiles and employment history. In fact Apex had deviated from this selection process
right from the beginning because the directors had decided to make their selection based
on the commercial need to lose certain roles in the business. This (new) selection process
was based on an overriding need to save money by cutting back on salaries. The
Tribunal notes that there is a reference to the appraisal of roles as a means of selection in
the 22nd August 2006 letter but it considers that it was not sufficiently prominent for staff
to think that the points system attached to the Policy, and which covered 2 pages, would
not apply and that in fact the Policy had been altered by the directors.
29. There is nothing wrong with a selection process based on roles where it is not possible to
compare functions of various members of staff within an organisation provided that the
staff are aware that their roles will form the basis of any decisions for posts to be made
redundant. An example of this is in respect of the redundancy of the Office
Administrator by Apex, a case heard by this Tribunal directly before this one, where it
was shown that the role of Office Administrator in Apex, stood alone and there were no
comparators with it in the organisation. However in Miss Gruchy‟s case there was
another secretary employed by Apex, Miss ……………, who at that time was Mr
O‟Reilly‟s and Mr Gallichan‟s personal assistant. The Company stated in evidence that
it considered the roles of secretary to the trust department and personal assistant to the
directors to be quite distinct roles in the organisation. It was clear from the evidence
heard that each person performed different functions in the company and had
accumulated different skills and experience. However, certain fundamental skills
remained transferable and for this reason, the company should have conducted a formal
selection process of the two candidates using the criteria contained in the Policy.
30. Evidence was heard by the Tribunal that Miss Bisson had made a few rough notes about
the candidate (which she had not kept) but had otherwise compared Miss Gruchy and
Miss ……… „in her head‟. The Tribunal notes from the evidence heard that Miss Bisson
had little to do with Miss Gruchy and did not consult with Miss Gruchy‟s line manager,
Miss Etienne, before making her decision. This is a highly disrespectful manner in
which to conduct a selection process where one person is going to lose their job at the
end of it. This Tribunal has no wish (or right) to impose any conclusions as to the
suitability of the candidate retained by Apex but it is highly critical of the dismissive
manner in which this „selection‟ exercise was conducted and suspects that a decision was
made as to the outcome from the outset. The Tribunal notes that the JACS Policy
98
requires employer‟s notes on its selection procedure to be retained for 6 months after the
redundancies.
31. The Tribunal does not know if Miss Gruchy was selected for redundancy through an
unsatisfactory selection process or because of her role as a secretary to the trust
department had been identified as superfluous to the company‟s needs in its then
financial condition by Miss Bisson. In any event the selection process as identified in the
Policy was not followed and Miss Gruchy was not made aware that it had been
abandoned.
32. The directors asked for ideas to avoid redundancies. This is recognised by the Policy.
However only four people came forward with suggestions. The Tribunal would have
expected the directors to be proactive at this stage and to have suggested to staff that they
think about job sharing, voluntary redundancies, short term wage cuts etc. to get the
conversation started between management and staff on this subject. Miss Gruchy spoke
to Mr Macintosh and Mr O‟Reilly about the redundancy after 31st August 2006 deadline,
but her idea was not shared by Mr Macintosh with his fellow directors.
33. The Tribunal notes that the Policy does not include a time frame, although the Tribunal
would not expect this process to be unreasonably long. In this case the initial
consultation started by the 22nd August 2006 letter expired on Thursday 31st August 2006.
The Tribunal would have thought it reasonable for the directors to have met in order to
make their initial decision on the redundancies during the next week, commencing
Monday, September 4th 2006. No one wants to be kept waiting in these circumstances
which are stressful for all concerned, including the management of a business.
34. Accordingly, the Tribunal would have expected the next stage in the Policy, that of
individual meetings with the employees preliminarily marked out for redundancy, to
have been held early in the week of 11th September 2006. This did not happen, and by
Friday 15th September 2006 the staff at Apex were understandably restless and
demoralised.
35. The Tribunal has looked at the reasons for this delay:
 Miss Bisson was frequently out of the office marketing the business. In any event
she was not a director of Apex at this time
 Mr O‟Reilly was absent from the office for long periods due to his mother‟s illness
 Mr Macintosh was on holiday until 1st September 2006 and then sick on the 13th,
14th and 15th September 2006. Further, he forbade Mr Gallichan from dealing with
this matter in his absence.
 The Board meeting of 12th September 2006 was adjourned because of the sad news
received by Mr O‟Reilly, and due to Mr Macintosh‟s absence, the meeting was not
reconvened.
36. The Tribunal notes that Mr Gallichan and Miss Bisson felt that the delay in informing
the relevant staff of their redundancy, was unacceptable, and can accept that the staff
were becoming more hostile to the management. The Tribunal was pleased that Mr
Gallichan decided to call a staff meeting on the 15th September 2006 to field questions on
this topic, and notes that he was the only member of management present. It is clear to
the Tribunal that Mr Gallichan in fact disclosed the new selection process to the staff at
that meeting that they would be looking at „secretarial, filing and compliance … roles‟
for redundancy.
37. At the shareholders meeting of the 18th September 2006 Mr Gallichan was instrumental
in getting Mr Macintosh to resign as managing director. At that meeting a decision was
also taken to inform the relevant staff the next day of their possible redundancy. Mr
O‟Reilly had to return to the UK and Mr Macintosh had in fact resigned from Apex. Miss
Bisson was not a director of the company at this time. This left just Mr Gallichan to deal
with this matter. Mr Gallichan admitted to the Tribunal that he had no HR experience
99
and was inexperienced in such matters. Also as a Compliance Director, he was used to
taking a less managerial role in the affairs in the business.
38. On the 18th September 2006 Mr Gallichan informed the staff that the meetings would be
held „during the morning‟ on the next day. He gave no specific time which with
hindsight was a mistake.
39. The Tribunal can understand why Mr Gallichan as the sole representative of the
management wanted to wait for Miss Bisson to come into work before conducting the
interviews. It is not unreasonable to require a witness to these conversations.
40. The Tribunal is aware that the tension was building up in the office. This was
volunteered by Mr Gallichan and not denied by Miss Gruchy. The Tribunal heard
evidence that by 10.15am, seven members of staff had crowded into Mr Gallichan‟s
office demanding to be told the decision. These seven members of staff then went to the
Board Room shut the door and having taken advice from JACS, issued a joint grievance
letter signed by each one of them. In the meantime no one was working – this in itself
could be considered a disciplinary offence in the opinion of this Tribunal.
41. The Tribunal heard evidence that Mr Gallichan is inexperienced ……………. ……. and in
handling people. The employee in charge of HR was one of the people in the Board
Room so he could not ask her for advice. Both Miss Gruchy and Mr Gallichan presented
evidence that the staff were demanding to have their redundancy meetings immediately.
However, Miss Gruchy said that she wanted a consultation meeting where she would be
advised of her redundancy and invited to reply. Mr Gallichan however interpreted this
demand as being one for a meeting to be held for the purpose of identifying who was
going to be made redundant, and he prepared letters of redundancy. When Miss Bisson
came in to work she agreed with this interpretation of events and they both decided to
issue the redundancy letters at the interviews. Both Miss Bisson and Mr Gallichan said
that they thought it was what the staff wanted.
42. If Miss Gruchy‟s version of events is believed, it would mean that the second stage of
the redundancy – the formal consultation with individual staff – as outlined in the Policy
was effectively missed out by Apex, and thus Miss Gruchy had no right of reply to her
nomination.
43. However, if Mr Gallichan‟s version of events is believed; that the staff‟s actions were so
exaggerated and hostile that he thought that they wished to skip the individual formal
consultation stage and go straight to dismissal in order to get it over with, then missing
out this stage becomes understandable.
44. The evidence in this case indicates to the Tribunal that on the 19th September 2006 the
staff „ganged up‟ on a sole inexperienced director forcing him to make a decision on the
redundancies. There should be some understanding that the mood and actions of the
staff were extremely stressful to the management of Apex. This stressful situation, in the
opinion of this Tribunal, led to a misunderstanding by Mr Gallichan of the desired
outcome of the redundancy meetings to be held that morning. The Tribunal is mindful
that by this time all communications between the parties had broken down and the staff
were acting in a most unprofessional manner. It is noted by the Tribunal that of the 9
staff in work that morning 7 were involved in this dispute. This misunderstanding by
Mr Gallichan is, in the opinion of the Tribunal, completely understandable in the
circumstances of this case and the Tribunal do not find the effective missing out of the
individual consultation stage in the redundancy policy unreasonable in these particular
and extreme circumstances.
45. The Tribunal wish to point out that if the staff had not rebelled in this manner and the
individual consultation stage had still been missed out by Mr Gallichan when
100
conducting interviews on the 19th September 2006, the Tribunal would have most
certainly found such omission and deviation from the Policy to be unreasonable.
46. The Tribunal are mindful that Miss Gruchy‟s appeal against her redundancy was not
heard by the directors. This stage is clearly anticipated in the Policy and both good
practice and fairness demands that it be included in any dismissal process. Basically
Miss Gruchy‟s request for an appeal was ignored by Mr Gallichan in his letter of reply
dated 2nd October 2006. Mr Gallichan informed the Tribunal that following receipt of
Miss Gruchy‟s letter of appeal (and those of other affected employees), he contacted
JACS for advice and assistance in conducting the appeals as he was conscious that
communication, trust and confidence had broken down between him and his ex-
employees, including Miss Gruchy. Mr Gallichan produced a letter which he had
received from JACS in response to his request for assistance, which appears to state that
JACS could not help him with the appeals because he had not followed some of the
earlier advice given to him. With this in mind and also accepting the difficulties he had
faced with the staff, Mr Gallichan decided not to meet them individually (including
Miss Gruchy), but instead write a comprehensive reply to their letters of appeal stating
the reasons for their redundancies. The Tribunal were astonished by the contents of this
letter and wishes to note here that in the lunch recess it contacted JACS for an
explanation. Mr David Witherington, director of JACS, confirmed that the JACS letter
had been badly phrased and that in fact another JACS officer would have been willing
to provide Apex with the advice sought although the letter did not explicitly state this.
47. The lack of an appeal in a dismissal process always troubles the Tribunal but in this
case, the Tribunal fully understands Mr Gallichan‟s understanding of the letter from
JACS, which it also finds quite misleading. Taking this into account the Tribunal finds
that Mr Gallichan did not act unreasonably in writing to Miss Gruchy as a means of
dealing with her appeal and her request for more information about her redundancy. It
is not clear what a formal appeal would have achieved in this case apart from giving
Miss Gruchy a chance to air her opinions as it was very clear to the Tribunal from
evidence heard that although the directors had not considered her position very
carefully, a secretarial role had to go at Apex in order for it ………….. ………
……………………………………………………………………
Conclusion
48. Apex were wrong to change the selection criteria for the selection of staff for redundancy
from that described in its redundancy policy. This wrong act was compounded by the
fact that the company either failed to note that a due comparison of skills needed to be
made between Miss Gruchy and Miss …. …….... or was extremely casual in the manner
in which such comparisons were made. If Apex had adhered to its original plan to hold
the individual consultation meetings in the second week of September 2006 many of the
problems would not have arisen. Miss Gruchy could also have been informed at that
time about the change in the selection criteria applied to her. The Tribunal have chosen
to believe Mr Gallichan that the poor behaviour of the staff led him to believe that they
wished the redundancy letters to be issued on that day, effectively missing out the
second stage. The Tribunal do not find this misunderstanding unreasonable. In the
circumstances of this case Apex‟s failure to conduct an appeal hearing is not considered
unreasonable and the Tribunal have taken a pragmatic view of what, in this case, could
have been changed even if the appeal had been heard.
49. However this case has to be looked at bearing in mind also its special circumstances case
including the poor leadership from management as well as the unforeseen problems and
difficulties faced by Mr O‟Reilly. It seems that Mr Gallichan finally had no choice but to
take over the procedure himself. The Tribunal accepts that Apex is a small business and
Mr Gallichan was inexperienced in these matters. The Tribunal is of the opinion that Mr
Gallichan did what he thought was best in very difficult circumstances which included
………………………………………………………………………….. ……………. However the
101
Tribunal is unclear whether the Company changed the criteria by which Miss Gruchy
was selected for redundancy from that described in the Policy, to one of looking at
specific roles in the business or if in fact it did apply a selection criteria, but not as
outlined in the Policy. In any event it appears that no attempt at a meaningful
comparison of roles was made. The provisional selection of a candidate for redundancy
occurs at the very first stage of a redundancy process and this Tribunal believes that
Miss Gruchy‟s selection was prejudiced from the very start by the failure to identify her
skills and compare them to other employees in the Company. For this reason, even
bearing in mind all the particular circumstances of this case, the Tribunal finds that the
failure to exercise a selection procedure in this case was not the reasonable action of a
reasonable employer. Accordingly, the Tribunal finds that Miss Gruchy was unfairly
dismissed.
AWARD
50. Pursuant to Article 77 of the Law the Tribunal makes an Award of compensation in
accordance with the Employment (Awards) (Jersey) Law 2005. As Miss Gruchy worked
for Apex for more than 5 years she is entitled to receive 26 weeks pay by way of
compensation. Miss Gruchy earned £552.88 a week.
£552.88 x 26 weeks = £14,374.88
The Claim for unpaid notice
51. Miss Gruchy claimed in her Form JET 1 that she had only received 6 weeks notice and
not the 8 weeks notice due to her pursuant to article 56 (1) (d) of the Law as she had been
continuously employed for more than 5 years but less than 10 years. The Tribunal were
informed that in fact Miss Gruchy did receive the extra 2 weeks notice due to her from
Apex after her JET 1 form was filed and therefore no award is made by the Tribunal.
The Issue of Holiday Pay
52. The Tribunal noted from the copy of Miss Gruchy‟s holiday chart included in its
bundles that Miss Gruchy had forward booked the 29th September 2006 as a days holiday
and the period 2nd October to 13th October 2006 as 10 days holiday. Miss Gruchy was
entitled to 34 days holiday during 2006. Her chart indicates that she had taken 19.5 days
up to the date of her dismissal, leaving 14.5 days to take over the rest of the year or, more
correctly 10 days for the balance of the year to the date of expiry of her notice, the 14th
November 2006.
53. However in her final pay statement Miss Gruchy had been treated as owing Apex 1
day‟s holiday which was deducted from her final wages. This is incorrect as shown by
paragraph 52 above and that sum must be repaid to bring her final pay up to its full
amount.
54. As stated in paragraph 52 above, Apex owed Miss Gruchy for the holidays she had
accrued and had not taken up to the date of expiry of her notice, which is 10 days
holiday, and this sum must be paid to Miss Gruchy too.
AWARD
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55. Miss Gruchy earned £110.58 per day.
Therefore, Miss Gruchy is awarded:
One days pay in repayment of the holiday wrongly deducted from her final wages. =
£110.58
Ten days pay in respect of holiday accrued and not taken = £110.58 x 10 days = £1,105.80
Schedule of Awards
1. Article 77, compensation for unfair dismissal £14,374.88
2. Article 86, repayment of monies deducted in error £110.58
3. Article 11, payment for annual leave due, but not taken £1,105.80
Total amount due £15,591.26
103
Jersey Employment Tribunal
Case Number: 0611203/06
Applicant: Mrs Karen Hibbs
Respondent: Apex Trust Company Limited
Case Summary: Unfair dismissal by reason of redundancy
Hearing on: 21st May 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman
Mr Stewart Mourant and Mr Alan Hall, Panel Members.
Representation:
For Applicant: Mrs Hibbs represented herself
For Respondent: Mr Richard Gallichan, Compliance Director
Witnesses:
For Applicant: Miss Susan Etienne
Mrs Veronica O‟Donnell
For Respondent: Miss Sandra Bisson, Managing Director
Miss Karyn Bidmead
The Facts
1. The Applicant was employed by the Respondent („Apex‟) from 10th February 1997 as a
Senior Trust and Compliance Officer. Mrs Hibbs‟ day was split between administering a
portfolio of trusts and companies for one particular major client of Apex and also
assisting in maintaining the group‟s compliance and procedures requirements in
accordance with the law. As a trust officer Mrs Hibbs reported to Miss Etienne, the Trust
Manager and as a Compliance Officer, Mrs Hibbs reported to Mr Gallichan, Compliance
Director. Mrs Hibbs always received outstanding appraisals for her work in the office
and had no history of disciplinary proceedings or prolonged sick leave or other absence.
2. Following the withdrawal of continued financial support by one of its shareholders in
December 2005, Apex was subject to a management buy out of those shares in order to
ensure its continued existence. A new shareholder was introduced to Apex and Douglas
Macintosh, Raymond O‟Reilly and Richard Gallichan also invested in the Company. The
management buy out was completed between February and June 2006. At the end of this
process, Douglas Mackintosh was the Managing Director and Finance Director of Apex,
Raymond Reilly was the Business Development Director and Richard Gallichan was the
Director in charge of Compliance. The directors were all aware that Apex was in
financial difficulties and agreed that the operation of the Company needed to be
reviewed and its costs firmly controlled over the next 18 months or so.
3. As part of an agreed initiative by the directors to obtain new business, Mr Gallichan
introduced Susan Bisson to the company. Miss Bisson‟s role was to market the
Company, bring in new business and contribute her experience of the finance industry
to the board of directors. Miss Bisson joined Apex as a director designate with effect
from 18th April 2006.
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4. Unfortunately within a few weeks of starting at Apex, Miss Bisson broke her leg very
badly and was off work until July 2006. Even at this time Miss Bisson was still
undertaking daily physiotherapy for the injuries to her leg. This treatment is still
continuing. On 14th July 2006 the directors held a board meeting to which Miss Bisson
was invited. This was the first time that Miss Bisson had seen Apex‟s management
accounts and she immediately expressed concern about the financial position of the
Company. It was obvious to her that the Company was overstaffed for the volume of
business it conducted. Also the salaries appeared higher than the average paid in the
industry (this was later proven correct by a survey of salaries conducted by a local
recruitment company). Miss Bisson and Mr Gallichan agreed that the Company could
not afford to sustain this level of salaries. At a previous board meeting Mr Gallichan had
suggested that the directors reduce their salaries but Mr Macintosh and Mr O‟Reilly had
rejected this proposal. Mr Gallichan‟s co-directors did not share his view that the salary
bill needed to be cut and in fact at the July 2006 board meeting, voted to increase the
staff‟s pay with a cost of living rise.
5. The next meeting of the board of directors of Apex was held off-site on 11th August 2006.
It had already been decided that staff restructuring and possible reductions would be
discussed. At the meeting Mr Macintosh also disclosed to the directors that
…………………………………………………………………..
………………………………………………………………………….. Again Mr Macintosh was
reluctant to make staff redundant and he and Mr O‟Reilly refused to take a cut in salary.
6. However it was obvious to the directors that cut backs needed to be made and in all
likelihood staff would have to be made redundant. Various meetings of the directors
were held in July and August 2006 to discuss the situation. During one of these meetings
on 16th August 2006, Mr O‟Reilly received news that his mother had terminal cancer. Mr
O‟Reilly promptly made arrangement to go to the UK. Mr Macintosh went on holiday
from 16th August 2006 to 1st September 2006. However it was agreed by the directors on
the 16th August 2006 that redundancies needed to be made to save costs.
7. Apex did not have a redundancy policy at that time and the directors decided to use the
one on the JACS website called, „A Security of Employment and Redundancy Policy‟. Mr
Gallichan and Miss Bisson also visited JACS for advice on implementing this policy.
8. It was decided by the directors that Miss Bisson should decide upon the roles to be made
redundant. This was because she had not been at Apex for very long and could make an
objective decision.
9. On 22nd August 2006, Mr Gallichan and Miss Bisson on behalf of Apex issued a
statement to the staff called „A Notice of Company Restructure‟. This document warned
that the Company was not doing well financially and concluded that this, „will result in
a reduction of support staff as well as some changes in our working practices‟. Staff were
invited to speak to any of the directors of the Company before 31st August 2006, after
which date the restructuring plans would be finalised. The Notice also stated that the
directors would be speaking to, „the individual members of staff next week and will
make an announcement to all staff regarding the redundancies once that process is
complete‟. Evidence was heard that the directors did not speak to the members of staff
during the following week. At this time Mr Macintosh was on holiday, Mr O‟Reilly was
concerned with personal matters and only Miss Bisson and Mr Gallichan were in the
office. It is noted that Miss Bisson was not a director of the Company at this time and
was frequently away on marketing trips.
10. In the period to 31st August 2006 only four members of staff approached Mr Gallichan or
Miss Bisson with ideas for restructuring the Company. Mrs Hibbs was not one of these
people.
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11. Mr Gallichan and Miss Bisson were concerned that the Company was not moving on to
the next stage of the Redundancy Policy – that of informing the staff formally that
redundancies were inevitable and to confirm the selection criteria with staff. It was
obvious to them that the delay in receiving news was causing upset to the staff. However
Mr Macintosh felt that due to Mr O‟Reilly‟s personal circumstances, the staff would
understand and accept any delay. The Tribunal heard evidence that this was not the case
and indeed morale was low.
12. On 12th September 2006, the Tribunal were informed that the directors held a meeting in
order to discuss the potential redundancies. Four specific roles in the office were
identified by the directors. Unfortunately during this meeting Mr O‟Reilly took a
telephone call to say that his mother had died. Mr O‟Reilly immediately left the meeting,
and it broke up with the intention of recommencing the next day.
13. On the 13th and 14th September 2006 the Tribunal were informed that Mr Macintosh
called in ill with stress, and Mr O‟Reilly was in the UK. The staff had been told they
would be informed of the roles provisionally identified for redundancy by the end of the
week (15th September 2006). Mr Gallichan contacted Mr Macintosh at home who said
that he would not be in the office on 15th September 2006 and that Mr Gallichan was not
authorised to make an announcement to the staff on the redundancies in his absence. By
this time Mr Gallichan had been presented with the management accounts for August
2006 and ………………………………………………………………………………..
…………………………………………………………………………………………………………
……………………………… In Mr Gallichan‟s opinion the four members of staff
identified for potential redundancy had to be informed as soon as possible. Mr
Gallichan called an EGM of the Company‟s shareholders to consider a resolution of no
confidence in Mr Macintosh as managing director. This meeting was scheduled for
Monday 18th September 2006.
14. On Friday 15th September 2006, Mr Gallichan met with the staff and discussed the
situation with them. The meeting became heated with staff claiming that the
Redundancy Policy had not been followed; Mr Gallichan disagreed with this assertion.
On being pressed by the staff Mr Gallichan confirmed that „secretarial, filing and
compliance roles‟ were being looked at for redundancy. Evidence was heard from Mr
Gallichan that privately he felt the affected staff should have been informed already of
their potential redundancy but his hands had been tied by Mr Macintosh.
15. At the Shareholders and directors meetings held on 18th September 2006, Mr Macintosh
resigned from the Company. Mr O‟Reilly, Miss Bisson and Mr Gallichan agreed that the
staff members likely to be made redundant should be interviewed the next day and
informed of their selection and the reasons for it. Mr O‟Reilly asked to be excused from
these meetings as he had to fly back to the UK for his mother‟s funeral. Miss Bisson
advised that she had a physiotherapy appointment and would not be available until late
morning.
16. Mr Gallichan informed the staff that he would meet those people at risk of losing their
job during the morning of 19th September 2006.
17. On his arrival at work at 8.45am on 19th September 2006, Mr Gallichan found all the staff
in early and the atmosphere tense. One member of staff had gone home because of an
alleged bullying incident. Mr Gallichan decided to wait until Miss Bisson came into
work before holding the interviews as with her present he would have an ally and a
witness to the conduct of those interviews. By 9.15am two members of staff had queried
with Mr Gallichan when the meetings would be held as the staff were restless. At
10.15am seven members of staff came into Mr Gallichan‟s office and demanded that the
meetings be held immediately and not on Miss Bisson‟s arrival. Mr Gallichan tried to
diffuse the situation with sympathy for their position but confirmed that he needed a
witness for the meetings. The staff became more aggressive and Mr Gallichan said he
106
did not wish to discuss the matter further. Mr Gallichan was informed by the staff that
no one would do any work until the meetings were held. The seven members of staff
then went into the board room and shut the door. On enquiry by Mr Gallichan they
confirmed that they were not prepared to do any work. Evidence was heard from Mr
Gallichan that the telephones were ringing and no work was being produced in the
office.
18. Mr Gallichan gave evidence that he felt very pressurised by the situation especially as he
was on his own. He told the Tribunal that he felt that he had „no option‟ but „to give in to
staff demands and prepare the letters of redundancy‟, which he did. On Miss Bisson‟s
arrival in the office, Mr Gallichan updated her of the situation and she agreed that they
should proceed to confirming the redundancies and issue the letters accordingly in order
to calm the situation.
19. Subsequently the four members of staff identified for redundancy were interviewed by
Mr Gallichan with Miss Bisson in attendance. Each such member of staff was handed
their redundancy letter giving them their notice and asked if they had queries. Mrs
Hibbs did not have any questions. Mrs Hibbs confirmed that there was no discussion of
her circumstances and or the reasons for her selection. Mrs Hibbs was aware that she was
required to work the period of her notice in order to clear a back log of work and effect
an orderly hand over of work. However Mrs Hibbs felt very upset by the events of the
19th September 2006 and went home after her interview. Subsequently Mrs Hibbs did
not feel well enough to return to work and was signed off work by her doctor until
Wednesday 25th October 2006.
20. On 20th September 2006, in accordance with her dismissal letter Mrs Hibbs appealed
against her dismissal to the directors of Apex. Mr Gallichan replied on the 3rd October
2006. Whilst his explanation of the basis of her selection for redundancy was very
detailed, he did not call her in to the office or enquire whether she had any particular
points regarding her redundancy to put to the directors. By Mr Gallichan‟s reply of 3rd
October 2006, the Company‟s decision to make Mrs Hibbs redundant was final.
21. Mrs Hibbs lodged a complaint of unfair dismissal with the Employment Tribunal on 6th
November 2006. It is clear from Mrs Hibbs Form JET 1 and the employer‟s reply on Form
JET 2 that there is a dispute between the parties as to a period of leave taken by Mrs
Hibbs between 25th October and 31st October 2006, which the Tribunal will adjudicate
upon according to Article 14 (4) of the Law. The parties have also asked the Tribunal to
confirm the amount of notice due to Mrs Hibbs and the treatment of holiday leave due to
her.
The Unfair Dismissal Claim
The Law
22. Article 64 of the Employment (Jersey) Law 2003 („the Law‟) requires an employer to show
the reason for the dismissal when fairness or unfairness of that dismissal is being
considered. Some reasons are considered potentially fair reasons and these are set out in
Article 64 (2). Redundancy is a potentially fair reason for dismissal. In any event an
employer is required by virtue of article 64 (4) to have acted reasonably in treating such
reason as sufficient reason for dismissal and to have acted in accordance with equity and
the substantial merits of the case.
23. Articles 64 (1) (2) and (4) are set out as follows:
64 General
(1) In determining for the purposes of this Part whether the dismissal of an employee is
fair or unfair, it shall be for the employer to show –
(a) the reason (or, if more than one, the principal reason) for the dismissal; and
107
(b) that it is either a reason falling within paragraph (2) or some other substantial
reason of a kind such as to justify the dismissal of an employee holding the position
which the employee held.
(2) A reason shall fall within this paragraph if it –
(a) relates to the capability or qualifications of the employee for performing work of
the kind which he was employed by the employer to do;
(b) relates to the conduct of the employee;
(c) is that the employee was redundant; or
(d) is that the employee could not continue to work in the position which he held
without contravention, (either on his part or on that of his employer) of a duty or
restriction imposed by or under an enactment.
(3) …….
(4) Where the employer has fulfilled the requirements of paragraph (1), the
determination of the question whether the dismissal is fair or unfair (having regard to
the reason shown by the employer) shall –
(a) depend on whether in the circumstances (including the size and administrative
resources of the employer‟s undertaking) the employer acted reasonably or unreasonably
in treating it as a sufficient reason for dismissing the employee; and
(b) be determined in accordance with equity and the substantial merits of the case.
(5) …..
24. Article 64 (5) refers to situations which are considered by the Law to be automatically
unfair dismissals, and they do not apply in this case.
25. Mrs Hibbs submitted that redundancy was not the real reason for her dismissal but that
instead it was based on Mr Gallichan‟s personal dislike of her.
26. Article 2 (1) of the Law defines Redundancy as follows:
Redundancy
(1) For the purposes of this Law an employee who is dismissed shall be taken
to be dismissed by reason of redundancy if the dismissal is wholly or mainly
attributable to –
(a) the fact that his employer has ceased or intends to cease –
(i) to carry on the business for the purposes of which the employee was
employed by him, or
(ii) to carry on that business in the place where the employee was so employed,
or
(b) the fact that the requirements of that business –
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the
employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.
27. The Tribunal heard evidence from Mr Gallichan and Miss Bisson that Apex
…………………………………………... As outlined in paragraphs 2 to 5 above this
situation had existed for some time. Mr Gallichan informed the Tribunal that by
September 2006 …………………………………………………..
…………………………………………………………………………………………………………
……………… The Tribunal were informed that the directors had decided at their board
meeting on 11th August 2006 that staff restructuring and reductions were required in
order to reduce costs (see Paragraph 5 above).
28. The directors clearly believed that in accordance with Article 2(1) (b) (i) above, „the
requirements of [Apex] for employees to carry out work of a particular kind … had
ceased or diminished‟.
108
29. Some evidence was heard from Mrs Hibbs that Mr Gallichan no longer treated her in the
same way as he had when they had worked together 18 months previously on
compliance matters. Mrs Hibbs said that Mr Gallichan had become dictatorial in his
approach and was not as team spirited. An example was brought to the Tribunal‟s
attention whereby Mr Gallichan had introduced a junior employee to the compliance
department without consulting her first. Mr Gallichan said this was to give the new
employee some experience and to help Mrs Hibbs clear the backlog of her work – it was
not meant as a personal sleight. Mr Gallichan also gave evidence that he was worried
about the company‟s business position throughout the period that they worked together
for a second time. The Tribunal can find no evidence that Mr Gallichan directed Miss
Bisson to single out Mrs Hibbs for redundancy because of any personal animosity.
However the evidence heard from Apex about its …………………………..problems was
comprehensive and robust. In the circumstances the Tribunal finds that the reason Mrs
Hibbs was dismissed was because of the redundancy of her position at Apex.
30. As stated in paragraph 22 above, redundancy is a potentially fair reason for dismissal.
Accordingly, in this case the Tribunal has considered whether Apex acted reasonably or
not in treating redundancy as being sufficient reason for dismissal and by looking at the
equity and substantial merits of the case.
31. In addition, in accordance with the findings of the Deputy Bailiff in Voisin v Brown
[2007] JRC 47 para 28, the Tribunal must also:
„ … concentrate not on whether the employer‟s decision or the procedure adopted by him was
wrong but on whether it was so wrong as to fall outside the band of reasonable actions on the
part of a reasonable employer‟.
Decision
32. Having considered the facts of this case and the law to be applied to them, the Tribunal
finds as follows.
33. A redundancy policy sets out the rules of engagement of employer and employee in a
redundancy situation. In this case the directors of Apex adopted the whole of the JACS
„Security of Employment and Redundancy Policy‟. It does not matter that they did not
write the policy themselves or alter or amend any part to suit their business. What is
important is that the employer told its employees that it was going to use this policy. The
directors of Apex are therefore expected to be familiar with the policy and to follow it. In
turn the staff are entitled to be able to rely upon it.
34. The Policy requires an initial warning of redundancy to be made. The Tribunal finds
that this was satisfied by the contents of the Notice of Company Restructure issued to
the staff on the 22nd August 2006.
35. There is nothing wrong with a selection process based on roles where it is not possible to
compare the functions of various members of staff within an organisation and provided
that the staff know that such selection will form the basis of decisions for posts to be
made redundant. However in Mrs Hibbs‟ case there were three members of staff against
whom her role in Apex could be compared:
 …………… – Trust Manager
 …………… – Trust Officer
 …………… – Trust Officer
Each of these members of staff performed different roles in the trust side of the company‟s
business and had different amounts of experience but basically certain fundamental skills of
that position remained transferable within the office. The Tribunal notes that there is a
reference to the appraisal of roles as a means of selection in the 22nd August 2006 letter but it
109
considers that it was not sufficiently prominent to staff to think that the points system
contained in the Policy would not be applied by Apex.
36. Evidence was heard from Miss Bisson that she had looked at each of the company
administrators and concluded as follows:
 That the Company did not need and could not afford another annual
reviewer of files, either on a full time or part time basis, and Mrs Hibbs did
not have a compliance qualification whereas she [Miss Bisson] did. In
addition Miss Bisson could support Mr Gallichan as Money Laundering
Reporting officer. Mrs Hibbs‟ work was falling behind so the split role
with administration was not working effectively. Finally, Mrs Hibbs‟
administrative client was to be asked to exit Apex as it was not cost
effective to the business to do that work. Evidence was shown that Apex
consistently lost money in working for that client.
 ………….. had brought clients with her to Apex which were exclusively
hers and which were generating income for the business. In addition
……………… had a knowledge and network of clients which was useful to
Apex, and ………………. had started to work on a new client with Mr
O‟Reilly, an arrangement which Miss Bisson did not wish to disturb. Mrs
Hibbs had not introduced any new clients to Apex.
 ……………………. was better qualified than Mrs Hibbs and had a thorough
knowledge of the company‟s client base as she regularly worked with more
clients than Mrs Hibbs did. Also Miss Bisson was advised by Mr
Mackintosh, Mr Gallichan and Mr O‟Reilly that…… ……….. and Mrs
Hibbs had difficulties in working together, a fact which is acknowledged in
Mrs Hibbs‟ last appraisal. Mrs Hibbs and …………. both denied that such
difficulty existed. In any event …………….. was to be asked to change her
role to that of Trust Officer following the restructuring, and to take a cut in
her salary. Apex did not anticipate having any managerial role in the Trust
side of the business following the restructuring, instead the Trust Officers
would report directly to the directors.
 ….. ………. was recruited in June 2006 to join Apex in November 2006
as she had knowledge of a particular client which was also moving its work
to Apex. …. ….. earned £20,000 p.a. less than Mrs Hibbs and her
knowledge and salary had been factored into Apex‟s fee proposal for this
client. …… …….. was junior to Mrs Hibbs in experience but able to support
a more senior member of staff.
37. Miss Bisson gave evidence that whilst she did not conduct a formal written selection
process of the four administrators in Apex she did think it through very thoroughly and
presented her findings to both Mr Gallichan and Mr O‟Reilly for a decision and a
weighing of the roles required in the business and of the persons presently employed by
the Company. The length of Mrs Hibbs service was taken into account but the problem
was that all of the administrators (barring ….. …….) considered themselves senior in
their role. A decision was then made by the directors that Mrs Hibbs‟ role should be
made redundant. Evidence was heard by the Tribunal from both Miss Bisson and Mr
Gallichan that when …… …….. handed in her notice on 19th September 2006, they had
every intention of asking Mrs Hibbs if she would take over ……. ……….. job (in the new
restructured form) but they never got the opportunity because Mrs Hibbs went on sick
leave immediately and subsequently moved to another job before the expiry of her
notice period. The Tribunal were informed that the directors of Apex did not attempt to
contact Mrs Hibbs about this new role during the time of her sick leave in order not to
stress her further, believing they would talk about it when she returned to work.
38. Whilst the Tribunal heard evidence that Miss Bisson did not consult Miss Etienne, Mrs
Hibbs‟ line manager prior to making her recommendations to Mr Gallichan and Mr
O‟Reilly, it is clear that Miss Bisson did pause, consider and reflect upon the individual
merits of each trust officer in Apex, before drawing any conclusions and presenting her
110
findings to the directors. Also, Mr Gallichan and Mr O‟Reilly had worked with Mrs
Hibbs for a number of years and knew her and her work well. Accordingly the directors
did not make an uninformed decision when identifying Mrs Hibbs‟ role for potential
redundancy. Furthermore the fact that Apex was willing to offer re-employment to Mrs
Hibbs immediately following ……. ………… resignation further indicates that her work
and contribution to Apex was valued.
39. The Tribunal criticises Miss Bisson for failing to make notes of her decision making
process in weighing up the administrative roles for potential redundancy. Whilst the
directors did not use the points system contained in the Policy the Tribunal can find no
evidence that the spirit of the selection process outlined in the Policy was substantially
deviated from in Mrs Hibbs‟ case.
40. The directors asked for ideas to avoid redundancies. This is recognised by the Policy.
However only four people came forward with suggestions. The Tribunal would have
expected the directors to be proactive at this stage and to have suggested to staff that they
think about job sharing, voluntary redundancies, short term wage cuts etc. to get the
conversation started between management and staff on this subject.
41. The Tribunal notes that the Policy does not include a time frame, although the Tribunal
would not expect this process to be unreasonably long. In this case the initial
consultation started by the 22nd August 2006 letter expired on Thursday 31st August 2006.
The Tribunal would have thought it reasonable for the directors to have met in order to
make their initial decision on the redundancies during the next week, commencing
Monday, September 4th 2006. No one wants to be kept waiting in these circumstances
which are stressful for all concerned, including the management of a business.
42. Accordingly, the Tribunal would have expected the next stage in the Policy, that of
individual meetings with the employees preliminarily marked out for redundancy, to
have been held early in the week of 11th September 2006. This did not happen, and by
Friday 15th September 2006 the staff at Apex were understandably restless and
demoralized.
43. The Tribunal has looked at the reasons for this delay:
 Miss Bisson was frequently out of the office marketing the business. In any event
she was not a director of Apex at this time
 Mr O‟Reilly was absent from the office for long periods due to his mother‟s illness
 Mr Macintosh was on holiday until 1st September 2006 and then sick on the 13th,
14th and 15th September 2006. Further, he forbade Mr Gallichan from dealing with
this matter in his absence.
 The Board meeting of 12th September 2006 was adjourned because of the sad news
received by Mr O‟Reilly, and due to Mr Macintosh‟s absence, the meeting was not
reconvened.
44. The Tribunal notes that Mr Gallichan and Miss Bisson felt that the delay in informing
the relevant staff of their redundancy, was unacceptable, and can accept that the staff
were becoming more hostile to the management. The Tribunal was pleased that Mr
Gallichan decided to call a staff meeting on the 15th September 2006 to field questions on
this topic, and notes that he was the only member of management present. It is clear to
the Tribunal that Mr Gallichan in fact disclosed the new selection process to the staff at
that meeting when he said that they would be looking at „secretarial, filing and
compliance … roles‟ for redundancy.
45. At the shareholders meeting of the 18th September 2006 Mr Gallichan was instrumental
in getting Mr Macintosh to resign as managing director. At that shareholder meeting a
decision was taken to inform the relevant staff the next day of their possible
redundancy. Mr O‟Reilly had to return to the UK and Mr Macintosh had in fact resigned
from Apex. Miss Bisson was not a director of the company at this time. This left just Mr
111
Gallichan to deal with this matter. Mr Gallichan admitted to the Tribunal that he had no
HR experience and was inexperienced in such matters. Also as a Compliance Director, he
was used to taking a less managerial role in the affairs in the business.
46. On the 18th September 2006 Mr Gallichan informed the staff that the meetings would be
held „during the morning‟ on the next day. He gave no specific time which with
hindsight was a mistake.
47. The Tribunal can understand why Mr Gallichan as the sole representative of the
management wanted to wait for Miss Bisson to come into work before conducting the
interviews. It is not unreasonable to require a witness to these conversations.
48. The Tribunal is aware that the tension was building up in the office. This was
volunteered by Mr Gallichan and not denied by Mrs Hibbs. The Tribunal heard
evidence that by 10.15am, seven members of staff had crowded into Mr Gallichan‟s
office demanding to be told the decision. These seven members of staff then went to the
Board Room shut the door and having taken advice from JACS, issued a joint grievance
letter signed by each one of them. In the meantime no one was working – this in itself
could be considered a disciplinary offence in the opinion of this Tribunal.
49. The Tribunal heard evidence that at this time Mr Gallichan was inexperienced … ………
………… in handling people. The employee in charge of HR was one of the people in the
Board Room so he could not ask her for advice. Both Mrs Hibbs and Mr Gallichan
presented evidence that the staff were demanding to have their redundancy meetings
immediately. However, Mrs Hibbs said that she wanted a consultation meeting where
she would be advised of her redundancy and invited to reply. Mr Gallichan however
interpreted this demand as being one for a meeting to be held for the purpose of
identifying who was going to be made redundant, and he prepared letters of
redundancy. When Miss Bisson came in to work she agreed with this interpretation of
events and they both decided to issue the redundancy letters at the interviews. Both Miss
Bisson and Mr Gallichan said that they thought it was what the staff wanted.
50. Mrs Hibbs gave evidence that she saw the letters of redundancy prepared and on Mr
Gallichan‟s desk by 09.30am on the 19th September 2006. Mr Gallichan said in evidence
that these were drafts only and at that stage not intended to be handed to the staff. Mr
Gallichan denied that the Company was always going to miss the individual
consultation stage of the Policy he said the Company only intended, „to begin
discussions with those staff … placed in the pool and therefore potentially at risk‟.
51. If Mrs Hibbs‟ version of events is believed, it would mean that the second stage of the
redundancy – the formal consultation with individual staff – as outlined in the Policy
was effectively missed out by Apex, and thus Mrs Hibbs had no right of reply to her
nomination.
52. However, if Mr Gallichan‟s version of events is believed; that the staff‟s actions were so
exaggerated and hostile that he thought that they wished to skip the second formal
consultation stage and go straight to dismissal in order to get it over with, then missing
out this stage becomes understandable.
53. On hearing the evidence in this case the Tribunal is of the opinion that on the 19th
September 2006 the staff of Apex „ganged up‟ on a sole inexperienced director forcing
him to make a decision on the redundancies. There should be some understanding that
the mood and actions of the staff were extremely stressful to the management of Apex.
This stressful situation, in the opinion of this Tribunal, led to a misunderstanding by Mr
Gallichan of the desired outcome of the redundancy meetings to be held that morning.
The Tribunal is mindful that by this time all communications between the parties had
broken down and the staff were acting in a most unprofessional manner. It is noted by
the Tribunal that of the nine staff in work that morning seven were involved in this
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dispute. This misunderstanding by Mr Gallichan is, in the opinion of the Tribunal,
completely understandable in the circumstances of this case and the Tribunal do not
find the effective missing out of the individual consultation stage in the redundancy
policy unreasonable in these particular and extreme circumstances.
54. The Tribunal wish to point out that if the staff had not rebelled in this manner and the
individual consultation stage had still been missed out by Mr Gallichan when
conducting interviews on the 19th September 2006, the Tribunal would have most
certainly found such omission and deviation from the Policy to be unreasonable.
55. The Tribunal are mindful that Mrs Hibbs‟ appeal against her redundancy was not heard
by the directors. This stage is clearly anticipated in the Policy and both good practice and
fairness demands that it be included in any dismissal process. Basically Mrs Hibbs‟
request for an appeal was ignored by Mr Gallichan in his letter of reply dated 3rd
October 2006. Mr Gallichan informed the Tribunal that following receipt of Mrs Hibbs‟
letter of appeal (and those of other affected employees), he contacted JACS for advice
and assistance in conducting the appeals as he was conscious that communication, trust
and confidence had broken down between him and his ex-employees, including Mrs
Hibbs. Mr Gallichan produced a letter which he had received from JACS in response to
his request for assistance, which appears to state that JACS could not help him with the
appeals because he had not followed some of the earlier advice given to him. With this
in mind and also accepting the difficulties he faced with the staff, Mr Gallichan decided
not to meet them individually (including Mrs Hibbs), but instead to write a
comprehensive reply to their letters of appeal stating the reasons for their redundancies.
The Tribunal were astonished by the contents of this letter and wishes to note here that
it contacted JACS for an explanation. Mr David Witherington, director of JACS,
confirmed that the JACS letter had been badly phrased and that in fact another JACS
officer would have been willing to provide Apex with the advice sought although the
letter did not explicitly state this.
56. The lack of an appeal in a dismissal process always troubles the Tribunal but in this
case, the Tribunal fully understands Mr Gallichan‟s understanding of the letter from
JACS, which it also finds quite misleading. Taking this into account the Tribunal finds
that Mr Gallichan did not act unreasonably in writing to Mrs Hibbs as a means of
dealing with her appeal and her request for more information about her redundancy. It
is not clear what a formal appeal would have achieved in this case apart from giving
Mrs Hibbs a chance to air her opinions as it was very clear to the Tribunal from evidence
heard that the directors had considered her position carefully but an administrative role
had to go at Apex in order for it to save costs ………………………………..
……………………………………………………………. .
Conclusion
57. The Tribunal can find no evidence in this case that Apex failed to follow the criteria for
the selection of staff for redundancy from that described in its redundancy policy. If the
company had adhered to its original plan to hold the individual consultation meetings in
the second week of September 2006 many of the problems would not have arisen. Mrs
Hibbs could also have been informed at that time about the application of the selection
criteria to her. The Tribunal have chosen to believe Mr Gallichan that the poor
behaviour of the staff led him to believe that they wished the redundancy letters to be
issued on that day, effectively missing out the second stage. The Tribunal do not find
this misunderstanding unreasonable. Apex were wrong not to have offered an appeal
against the decision once made, but in the circumstances of this case such failure is not
considered to be unreasonable. Further, the Tribunal have taken a pragmatic view of
what, in this case, could have been changed even if the appeal had been heard.
113
58. The Tribunal have borne in mind the special circumstances of this case including the
poor leadership from management as well as the unforeseen problems and difficulties
faced by Mr O‟Reilly. The Tribunal accepts that Mr Gallichan finally had no choice but
to take over the procedure himself. Apex is a small business and Mr Gallichan was
inexperienced in these matters. The Tribunal is of the opinion that Mr Gallichan did
what he thought was best in very difficult circumstances which included
……………………………….. ……………………………………………………………………….
59. For these reasons, and looking at the situation as a whole, the Tribunal does not find the
actions of Mr Gallichan as a director of Apex to be unreasonable and accordingly does
not find the dismissal of Mrs Hibbs to be unfair.
The Issue of unauthorised leave
60. Mrs Hibbs obtained sick notes from her doctor for the period 20th September 2006 to 24th
October 2006. Mrs Hibbs also obtained sickness benefit from Social Security during this
period and this has been paid to Apex in accordance with their sickness policy. Mrs
Hibbs‟ last sick note expired on the 24th October 2006 and she was expected back into
work the next day. When Mrs Hibbs failed to turn up, the directors of Apex assumed she
had been signed off sick again and waited to receive a further sick note. In the meantime
Mrs Hibbs had found another position and wished to be released early from her contract
with Apex. Mrs Hibbs had been required to work until 19th December 2006 but an earlier
termination date of 31st October 2006 was agreed. Mr Gallichan arranged for Mrs Hibbs
to come in to work on 30th October 2006 to effect a handover of her work, and this was
done. Mrs Hibbs‟ salary for October was paid to her on the 23rd October 2006 in full in
accordance with the usual practice. When the directors realised that they had not
received a sick note for the 25th to 31st October 2006 period and that Mrs Hibbs had not
returned on the 25th October 2006 to work the last week of her notice as planned, they
sought to reclaim a week‟s salary from Mrs Hibbs on the basis that such week was
unauthorised leave. Mrs Hibbs has resisted such claims on the basis that she thought
that Apex had agreed to her having the week off.
Decision
61. The Tribunal finds that Apex had no intention of granting a week‟s paid leave to Mrs
Hibbs following her period of illness. Indeed the directors wanted Mrs Hibbs to come
into work and clear some of her work before she left the company. Mrs Hibbs has clearly
misunderstood the situation. The Tribunal finds that the period between 25th and 31st
October 2006 (5 working days) was unauthorised leave and in accordance with article
14(4) of the Law hereby ORDERS Mrs Hibbs to repay £1,014.40 to Apex without delay.
This sum is calculated as follows:
Mrs Hibbs earned £52,750 per annum, which is £202.88 per day.
£202.88 x 5 days = £1,014.40
The Issue of Notice Pay
62. Mrs Hibbs had been employed by Apex for 9 years and 8 months by date of termination
of her employment on 31st October 2006. She was given 12 weeks notice by Apex
although she was released by mutual agreement on 31st October 2006. However, the
Tribunal are satisfied that this arrangement is in accordance with Article 56 of the Law
and Mrs Hibbs has received the correct amount of notice.
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The Issue of holiday leave.
63. The Tribunal finds that Mrs Hibbs was due 25 days holiday in 2006 to the 31st October
2006, the date of expiry of her notice. Mrs Hibbs was paid or received the benefit of 25
days holiday on leaving Apex and the Tribunal find that this is in accordance with
Article 14 of the Law.
Schedule of Awards
1. Article 14(4) payment due to Apex in respect of unauthorised leave £1,014.40
115
Jersey Employment Tribunal
Case Number: 2711208 / 06
Applicant: Mrs Veronica O‟Donnell
Respondent: Apex Trust Company Limited
Case Summary: Unfair dismissal by reason of redundancy
Hearing on: 24th May 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman
Mr Stewart Mourant and Mr Alan Hall, Panel Members.
Representation:
For Applicant: Mrs O‟Donnell represented herself
For Respondent: Mr Richard Gallichan, Compliance Director
Witnesses:
For Applicant: Mrs Karen Hibbs
Miss Susan Etienne
For Respondent: Miss Sandra Bisson, Managing Director
The Facts
1. The Applicant was employed by the Respondent („Apex‟) as an Accounts Officer on 13th
August 2001 rising to Management Accounting Technician/Clients Accounts Preparer
until she was made redundant by Apex on 24th July 2004 with effect from 31st August
2004. However, on 1st September 2004, Mrs O‟Donnell was appointed Office
Administrator of Apex and her duties included being a PA to the Managing Director,
becoming HR Officer, and assisting with fee collections, reception duties, book keeping
and the preparation of accounts for clients. On the 15th February 2006, Mrs O‟Donnell‟s
position was re-titled Office Manager. Mrs O‟Donnell was made redundant from Apex
on the 19th September 2006, and her contract terminated on the 18th December 2006.
2. Following the withdrawal of continued financial support by one of its shareholders in
December 2005, Apex was subject to a management buy out of those shares in order to
ensure its continued existence. A new shareholder was introduced to Apex and Douglas
Macintosh, Raymond O‟Reilly and Richard Gallichan also invested in the Company. The
management buy out was completed between February and June 2006. At the end of this
process, Douglas Mackintosh was the Managing Director and Finance Director of Apex,
Raymond Reilly was the Business Development Director and Richard Gallichan was the
Director in charge of Compliance. The directors were all aware that Apex was in
financial difficulties and agreed that the operation of the Company needed to be
reviewed and its costs firmly controlled over the next 18 months or so.
3. As part of an agreed initiative by the directors to obtain new business, Mr Gallichan
introduced Susan Bisson to the company. Miss Bisson‟s role was to market the
Company, bring in new business and contribute her experience of the finance industry
to the board of directors. Miss Bisson joined Apex as a director designate with effect
from 18th April 2006.
116
4. Unfortunately within a few weeks of starting at Apex, Miss Bisson broke her leg very
badly and was off work until July 2006. Even at this time Miss Bisson was still
undertaking daily physiotherapy for the injuries to her leg. This treatment is still
continuing. On 14th July 2006 the directors held a board meeting to which Miss Bisson
was invited. This was the first time that Miss Bisson had seen Apex‟s management
accounts and she immediately expressed concern about the financial position of the
Company. It was obvious to her that the Company was overstaffed for the volume of
business it conducted. Also the salaries appeared higher than the average paid in the
industry (this was later proven correct by a survey of salaries conducted by a local
recruitment company). Miss Bisson and Mr Gallichan agreed that the Company could
not afford to sustain this level of salaries. At a previous board meeting Mr Gallichan had
suggested that the directors reduce their salaries but Mr Macintosh and Mr O‟Reilly had
rejected this proposal. Mr Gallichan‟s co-directors did not share his view that the salary
bill needed to be cut and in fact at the July board meeting, voted to increase the staff‟s
pay with a cost of living rise.
5. The next meeting of the board of directors of Apex was held off-site on 11th August 2006.
It had already been decided that staff restructuring and possible reductions would be
discussed. At the meeting Mr Macintosh also disclosed to the directors that
…………………………………………………………………..
…………………………………………………………………………. . Again Mr Macintosh was
reluctant to make staff redundant and he and Mr O‟Reilly refused to take a cut in salary.
6. However it was obvious to the directors that cut backs needed to be made and in all
likelihood staff would have to be made redundant. Various meetings of the directors
were held in July and August 2006 to discuss the situation. During one of these meetings
on 16th August 2006, Mr O‟Reilly received news that his mother had terminal cancer. Mr
O‟Reilly promptly made arrangements to go to the UK. Mr Macintosh went on holiday
from 16th August 2006 to 1st September 2006. However it was agreed by the directors on
16th August 2006 that redundancies needed to be made to save costs.
7. Apex did not have a redundancy policy at that time and the directors decided to use the
one on the JACS website called, „A Security of Employment and Redundancy Policy‟. Mr
Gallichan and Miss Bisson also visited JACS for advice on implementing this policy.
8. It was decided by the directors that Miss Bisson should decide upon the roles to be made
redundant. This was because she had not been at Apex for very long and could make an
objective decision.
9. On 22nd August 2006, Mr Gallichan and Miss Bisson on behalf of Apex issued a
statement to the staff called „A Notice of Company Restructure‟. This document warned
that the Company was not doing well financially and concluded that this, „will result in
a reduction of support staff as well as some changes in our working practices‟. Staff were
invited to speak to any of the directors of the Company before 31st August 2006, after
which date the restructuring plans would be finalised. The Notice also stated that the
directors would be speaking to, „the individual members of staff next week and will
make an announcement to all staff regarding the redundancies once that process is
complete‟. Evidence was heard that the directors did not speak to the members of staff
during the following week. At this time Mr Macintosh was on holiday, Mr O‟Reilly was
concerned with personal matters and only Miss Bisson and Mr Gallichan were in the
office. It is noted that Miss Bisson was not a director of the Company at this time and
was frequently away on marketing trips.
10. In the period to 31st August 2006 only four members of staff approached Mr Gallichan or
Miss Bisson with ideas for restructuring the Company. Mrs O‟Donnell was not one of
these people.
117
11. Mr Gallichan and Miss Bisson were concerned that the Company was not moving on to
the next stage of the Redundancy Policy – that of informing the relevant staff formally
that redundancies were inevitable and confirming the selection criteria with staff. It was
obvious to them that the delay in receiving news was causing upset to the staff. However
Mr Macintosh felt that due to Mr O‟Reilly‟s personal circumstances, the staff would
understand and accept any delay. The Tribunal heard evidence that this was not the case
and indeed morale was low.
12. On 12th September 2006, the Tribunal were informed that the directors held a meeting in
order to discuss the potential redundancies. Four specific roles in the office were
identified by the directors. Unfortunately during this meeting Mr O‟Reilly took a
telephone call to say that his mother had died. Mr O‟Reilly immediately left the meeting,
and it broke up with the intention of recommencing the next day.
13. On the 13th and 14th September 2006, the Tribunal were informed that Mr Macintosh
called in ill with stress, and Mr O‟Reilly was in the UK. The staff had been told they
would be informed of the roles provisionally identified for redundancy by the end of the
week (15th September 2006). Mr Gallichan contacted Mr Macintosh at home who said
that he would not be in the office on 15th September 2006 and that Mr Gallichan was not
authorised to make an announcement to the staff on the redundancies in his absence. By
this time Mr Gallichan had been presented with the management accounts for August
2006 and ………………………………………………………………………………..
…………………………………………………………………………………………………………
………………………………... In Mr Gallichan‟s opinion the four members of staff
identified for potential redundancy had to be informed as soon as possible. Mr
Gallichan called an EGM of the Company‟s shareholders to consider a resolution of no
confidence in Mr Macintosh as managing director. This meeting was scheduled for
Monday 18th September 2006.
14. On Friday 15th September 2006, Mr Gallichan met with the staff and discussed the
situation with them. The meeting became heated with staff claiming that the
Redundancy Policy had not been followed; Mr Gallichan disagreed with this assertion.
On being pressed by the staff Mr Gallichan confirmed that „secretarial, filing and
compliance roles‟ were being looked at for redundancy. Evidence was heard from Mr
Gallichan that privately he felt the affected staff should have been informed already of
their potential redundancy but his hands had been tied by Mr Macintosh.
15. At the Shareholders and directors meetings held on 18th September 2006, Mr Macintosh
resigned from the Company. Mr O‟Reilly, Miss Bisson and Mr Gallichan agreed that the
staff members likely to be made redundant should be interviewed the next day and
informed of their selection and the reasons for it. Mr O‟Reilly asked to be excused from
these meetings as he had to fly back to the UK for his mother‟s funeral. Miss Bisson
advised that she had a physiotherapy appointment and would not be available until late
morning.
16. Mr Gallichan informed the staff that he would meet those people at risk of losing their
job during the morning of 19th September 2006.
17. On his arrival at work at 8.45am on 19th September 2006, Mr Gallichan found all the staff
in early and the atmosphere tense. One member of staff had gone home because of an
alleged bullying incident. Mr Gallichan decided to wait until Miss Bisson came into
work before holding the interviews as with her present he would have an ally and a
witness to the conduct of those interviews. By 9.15am two members of staff had queried
with Mr Gallichan when the meetings would be held as the staff were restless. At
10.15am seven members of staff came into Mr Gallichan‟s office and demanded that the
meetings be held immediately and not on Miss Bisson‟s arrival. Mr Gallichan tried to
diffuse the situation with sympathy for their position but confirmed that he needed a
witness for the meetings. The staff became more aggressive and Mr Gallichan said he
118
did not wish to discuss the matter further. Mr Gallichan was informed by the staff that
no one would do any work until the meetings were held. The seven members of staff
then went into the board room and shut the door. On enquiry by Mr Gallichan they
confirmed that they were not prepared to do any work. Evidence was heard from Mr
Gallichan that the telephones were ringing and no work was being produced in the
office.
18. Mr Gallichan gave evidence that he felt very pressurised by the situation especially as he
was on his own. He told the Tribunal that he felt that he had „no option‟ but „to give in to
staff demands and prepare the letters of redundancy‟, which he did. On Miss Bisson‟s
arrival in the office, Mr Gallichan updated her of the situation and she agreed that they
should proceed to confirming the redundancies and issue the letters accordingly in order
to calm the situation.
19. Subsequently the four members of staff identified for redundancy were interviewed by
Mr Gallichan with Miss Bisson in attendance. Each such member of staff was handed
their redundancy letter giving them their notice and asked if they had queries. Mrs
O‟Donnell was interviewed alone and she asked what the selection criteria were and
how they had been applied to her. She was informed that the directors had made their
decision and did not wish to discuss it. Mrs O‟Donnell confirmed that there was no
discussion of her circumstances but she was asked to work out the period of her notice
(three months).
20. On the 19th September 2006 Mrs O‟Donnell wrote to Mr Gallichan asking for a copy of
the selection criteria applied to her position in the Company. It is not clear whether this
letter is meant to be an appeal in accordance with her dismissal letter. Mr Gallichan
replied on the 29th September 2006. Whilst his explanation of the basis of her selection
for redundancy was very detailed, he did not call her into the office or enquire whether
she had any particular points regarding her redundancy to put to the directors. By Mr
Gallichan‟s reply of the 29th September 2006, the Company‟s decision to make Mrs
O‟Donnell redundant was final. Mr Gallichan explained to the Tribunal that following
the round of redundancies on the 19th September 2006, he and Mrs Bisson, believing that
all constructive communication between the directors and the staff had broken down,
had the visited the offices of JACS for advice and assistance on administering the
appeals against redundancy that they had received. JACS had subsequently sent a letter
on 25th September 2006 informing them that JACS could not in fact assist with the
appeals process. A copy of this letter was produced to the Tribunal and the Tribunal
agree with this interpretation. The Tribunal contacted JACS about this letter and were
informed that in fact JACS would have used another member of staff to assist in the
appeals, but the letter does not say this.
21. Mrs O‟Donnell lodged a complaint of unfair dismissal with the Employment Tribunal
on 27th November 2006. Mrs O‟Donnell also claimed that her period of continuous
employment with Apex had been misinterpreted in that her re-employment as Office
Administrator on 1st September 2004 after her redundancy was being treated by Apex as
a break in service. This interpretation was causing her detriment because certain
additional payments had not been made into her pension plan which she felt she was
entitled to receive. In their Form JET 2 Apex responded that Mrs O‟Donnell was not
eligible for such additional pension benefits because her period of continuous service
had been broken by her previous redundancy and furthermore Mrs O‟Donnell had taken
more annual leave than she was entitled to, again because she had misunderstood her
period of continuous service.
119
The Unfair Dismissal Claim
The Law
22. Article 64 of the Employment (Jersey) Law 2003 („the Law‟) requires an employer to show
the reason for the dismissal when fairness or unfairness of that dismissal is being
considered. Some reasons are considered potentially fair reasons and these are set out in
Article 64 (2). Redundancy is a potentially fair reason for dismissal. In any event an
employer is required by virtue of article 64 (4) to have acted reasonably in treating such
reason as sufficient reason for dismissal and to have acted in accordance with equity and
the substantial merits of the case.
23. Articles 64 (1) (2) and (4) are set out as follows:
64 General
(1) In determining for the purposes of this Part whether the dismissal of an
employee is fair or unfair, it shall be for the employer to show –
(a) the reason (or, if more than one, the principal reason) for the dismissal; and
(b) that it is either a reason falling within paragraph (2) or some other
substantial reason of a kind such as to justify the dismissal of an employee
holding the position which the employee held.
(2) A reason shall fall within this paragraph if it –
(a) relates to the capability or qualifications of the employee for performing
work of the kind which he was employed by the employer to do;
(b) relates to the conduct of the employee;
(c) is that the employee was redundant; or
(d) is that the employee could not continue to work in the position which he
held without contravention, (either on his part or on that of his employer) of a
duty or restriction imposed by or under an enactment.
(3) …….
(4) Where the employer has fulfilled the requirements of paragraph (1), the
determination of the question whether the dismissal is fair or unfair (having
regard to the reason shown by the employer) shall –
(a) depend on whether in the circumstances (including the size and
administrative resources of the employer‟s undertaking) the employer acted
reasonably or unreasonably in treating it as a sufficient reason for dismissing the
employee; and
(b) be determined in accordance with equity and the substantial merits of the
case.
(5) …..
24. Article 64 (5) refers to situations which are considered by the Law to be automatically
unfair dismissals, and they do not apply in this case.
25. Mrs O‟Donnell submitted that redundancy was not the real reason for her dismissal but
that instead it was based on personal issues that had arisen between her and Mr
Gallichan.
26. Article 2 (1) of the Law defines Redundancy as follows:
Redundancy
(1) For the purposes of this Law an employee who is dismissed shall be taken
to be dismissed by reason of redundancy if the dismissal is wholly or mainly
attributable to –
(a) the fact that his employer has ceased or intends to cease –
120
(i) to carry on the business for the purposes of which the employee was
employed by him, or
(ii) to carry on that business in the place where the employee was so employed,
or
(b) the fact that the requirements of that business –
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the
employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.
27. The Tribunal heard evidence from Mr Gallichan and Miss Bisson that Apex was
……………………………………… As outlined in paragraphs 2 to 5 above this situation
had existed for some time. Mr Gallichan informed the Tribunal that by September 2006
…………………………………………………………..
…………………………………………………………………………………………………………..
The Tribunal were informed that the directors had decided at their board meeting on 11th
August 2006 that staff restructuring and reductions were required in order to reduce
costs (see paragraph 5 above).
28. The directors clearly believed that in accordance with Article 2(1) (b) (i), „the
requirements of [Apex] for employees to carry out work of a particular kind … had
ceased or diminished‟.
29. Evidence was heard from Mrs O‟Donnell and Mr Gallichan that indicated to the
Tribunal that they did not get along particularly well. Mrs O‟Donnell does appear to
have failed to recognise or even undermined Mr Gallichan‟s authority on occasions. Mr
Gallichan admitted to being short tempered and pre-occupied in the office but says it
was a reflection of the concerns he felt because of ………………………………… the
business. This does not seem unreasonable in the circumstances. Both Mr Gallichan and
Miss Bisson were open and helpful in their descriptions of the financial difficulties
faced by Apex during this period and their evidence was comprehensive and robust. It
was clear that Apex needed to cut its operating costs. In the circumstances the Tribunal
finds that the reason Mrs O‟Donnell was made redundant was because the position of
Office Manager/HR Manager at Apex was no longer required.
30. As stated in paragraph 22 above, redundancy is a potentially fair reason for dismissal.
Accordingly, in this case the Tribunal has considered whether Apex acted reasonably or
not in treating redundancy as being sufficient reason for dismissal and by looking at the
equity and substantial merits of the case.
31. In addition, in accordance with the findings of the Deputy Bailiff in Voisin v Brown
[2007] JRC 47 para 28, the Tribunal must also:
„ … concentrate not on whether the employer‟s decision or the procedure adopted by him
was wrong but on whether it was so wrong as to fall outside the band of reasonable
actions on the part of a reasonable employer‟.
Decision
32. Having considered the facts of this case and the law to be applied to them, the Tribunal
finds as follows.
33. A redundancy policy sets out the rules of engagement of employer and employee in a
redundancy situation. In this case the directors of Apex adopted the whole of the JACS
„Security of Employment and Redundancy Policy‟. It does not matter that they did not
write the policy themselves or alter or amend any part to suit their business. What is
important is that the employer told its employees that it was going to use this policy. The
121
directors of Apex are therefore expected to be familiar with the Policy and to follow it. In
turn the staff are entitled to be able to rely upon it.
34. The Policy requires an initial warning of redundancy to be made. The Tribunal finds
that this was satisfied by the contents of the Notice of Company Restructure issued to
the staff on the 22nd August 2006. However the Tribunal notes that this Notice only
referred to a reduction in „support staff‟ which would not necessarily automatically
include an Office Manager with an HR function. Also, on the 15th September 2006, Mr
Gallichan did not include any reference to office manager as being one of the roles they
were looking at for redundancy.
35. The Policy said that the selection process would be based on a scoring system of staff
profiles and employment history. In fact Apex had deviated from this selection process
right from the beginning because the directors had decided when looking at staff which
they considered to be in a pool of one, to make their selection based on the commercial
need to lose superfluous roles in the business. This (new) selection process was based on
an overriding need to save money by cutting back on salaries.
36. There is nothing wrong with a selection process based on roles. However the directors
do not appear to have looked at Mrs O‟Donnell‟s position in the company in any depth.
If they had consulted her personnel file for example (evidence was heard from Mrs
O‟Donnell who held the sole key to the cabinet where the personnel files were kept, that
no director asked to review any of the files, including hers, in the lead up to their
decision) or even paused to consider her history with Apex they would have realised that
Mrs O‟Donnell had accounting experience and a STEP certificate with some
administrative experience, as well as typing, and PA skills. Miss Bisson‟s newness to
Apex brought objectivity to the decision on roles suitable for potential redundancy, but
no insight into the history of the employees.
37. Mr Gallichan countered in evidence that Mrs O‟Donnell‟s administrative qualifications
and experience were not good enough to enable her to be employed as a company and
trust administrator at Apex. That may be the case but no one seems to have flagged up
that she could have a transferable skill. Mr Gallichan also said that no position in the
accounts department was suitable for Mrs O‟Donnell apart from the part time one
occupied by …….. ………… and they did not think she would be interested in that. That
is an extremely arrogant position to take: Mrs O‟Donnell had been at Apex for far longer
than ………………. and should have at least been asked if she was interested in the post.
Again, Mrs O‟Donnell was acting as PA to the managing director, and …………………
was PA to Mr O‟Reilly. The Tribunal finds that a comparison of these roles should have
been made by the directors. Mr Gallichan also said that Mrs O‟Donnell‟s HR function
was being absorbed by the directors or outsourced to professionals and they did not
need her to perform these services. This is a consideration to be put into the process but
not a complete reason for dispensing with her services.
38. It is not for the Tribunal to assess whether the right person or persons have been kept on
by Apex, but it is the role of the Tribunal to assess whether the redundancy procedure at
any point has been applied fairly and in a reasonable manner to a set of circumstances.
The Tribunal finds that the directors of Apex failed to consider Mrs O‟Donnell‟s role
and history in the Company and further, that they failed to consider whether she had
any skills which could be transferred. The directors looked at Mrs O‟Donnell‟s present
function of Office Manager with HR function and in their haste to save costs, wrongly
assessed her as being in a pool of one.
39. Not only did the directors wrongly identify Mrs O‟Donnell as being in a pool of one
they also failed to communicate to the staff that they were not going to use the points
system described in the JACS policy. At this point the staff were relying on the directors
to follow the JACS model and Mrs O‟Donnell expected to score well on that basis.
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40. The Tribunal notes that there is reference to the appraisal of roles as a means of selection
in the 22nd August 2006 letter but considers that it was not sufficiently prominent for
staff to think that the points system attached to the Policy, and which covers two pages,
would not apply and that in fact the Policy had been altered by the directors.
41. The directors asked for ideas to avoid redundancies. This is recognised by the Policy.
However only four people came forward with suggestions. The Tribunal would have
expected the directors to be proactive at this stage and to have suggested to staff that they
think about job sharing, voluntary redundancies, short term wage cuts etc. to get the
conversation started between management and staff on this subject.
42. The Tribunal notes that the Policy does not include a time frame, although the Tribunal
would not expect this process to be unreasonably long. In this case the initial
consultation started by the 22nd August 2006 letter expired on Thursday 31st August 2006.
The Tribunal would have thought it reasonable for the directors to have met in order to
make their initial decision on the redundancies during the next week, commencing by
Monday, September 4th 2006. No one wants to be kept waiting in these circumstances
which are stressful for all concerned, including the management of a business.
43. Accordingly, the Tribunal would have expected the next stage in the Policy, that of
individual meetings with the employees preliminarily marked out for redundancy, to
have been held early in the week of 11th September 2006. This did not happen, and by
Friday 15th September 2006 the staff at Apex were understandably restless and
demoralised.
44. The Tribunal has looked at the reasons for this delay:
 Miss Bisson was frequently out of the office marketing the business. In any event
she was not a director of Apex at this time
 Mr O‟Reilly was absent from the office for long periods due to his mother‟s illness
 Mr Macintosh was on holiday until 1st September 2006 and then sick on the 13th,
14th and 15th September 2006. Further, he forbade Mr Gallichan from dealing with
this matter in his absence
 The Board meeting of 12th September 2006 was adjourned because of the sad news
received by Mr O‟Reilly, and due to Mr Macintosh‟s absence, the meeting was not
reconvened.
45. The Tribunal notes that Mr Gallichan and Miss Bisson felt that the delay in informing
the relevant staff of their redundancy, was unacceptable, and can accept that the staff
were becoming more hostile to the management. The Tribunal was pleased that Mr
Gallichan decided to call a staff meeting on the 15th September 2006 to field questions on
this topic, and notes that he was the only member of management present. It is clear to
the Tribunal that Mr Gallichan in fact disclosed the new selection process to the staff at
that meeting in that he said they would be looking at „secretarial, filing and compliance
… roles‟ for redundancy, but it is not clear if the staff picked this up as a change from
the Policy. What is clear to the Tribunal is that this statement contains no reference to
Mrs O‟Donnell‟s position as Office Manager, or her varied functions in accounting or
HR work.
46. At the shareholders meeting of the 18th September 2006 Mr Gallichan was instrumental
in getting Mr Macintosh to resign as managing director. At that meeting a decision was
also taken to inform the relevant staff the next day of their possible redundancy. Mr
O‟Reilly had to return to the UK and Mr Macintosh had in fact resigned from Apex. Miss
Bisson was not a director of the company at this time. This left just Mr Gallichan to deal
with this matter. Mr Gallichan admitted to the Tribunal that he had no HR experience
and was inexperienced in such matters. Also as a Compliance Director, he was used to
taking a less managerial role in the affairs in the business.
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47. On the 18th September 2006 Mr Gallichan informed the staff that the meetings would be
held „during the morning‟ on the next day. He gave no specific time which with
hindsight was a mistake.
48. The Tribunal can understand why Mr Gallichan as the sole representative of the
management wanted to wait for Miss Bisson to come into work before conducting the
interviews. It is not unreasonable to require a witness to these conversations.
49. The Tribunal is aware that the tension was building up in the office. This was
volunteered by Mr Gallichan and not denied by Mrs O‟Donnell. The Tribunal heard
evidence that by 10.15am, seven members of staff had crowded into Mr Gallichan‟s
office demanding to be told the decision. These seven members of staff then went to the
Board Room, shut the door and having taken advice from JACS, issued a joint grievance
letter signed by each one of them. In the meantime no one was working – this in itself
could be considered a disciplinary offence in the opinion of this Tribunal.
50. The Tribunal heard evidence that Mr Gallichan is inexperienced …………. ……… .. in
handling people. Mrs O‟Donnell was in charge of HR and was one of the people in the
Board Room so he could not ask her for advice. Both Mrs O‟Donnell and Mr Gallichan
presented evidence that the staff were demanding to have their redundancy meetings
immediately. However, Mrs O‟Donnell said that the staff wanted to hold a consultation
meeting where they would be advised of their redundancy and invited to reply in
accordance with the Policy. Mr Gallichan however interpreted this demand as being one
for a meeting to be held for the purpose of identifying who was going to be made
redundant, and he prepared letters of redundancy. When Miss Bisson came in to work
she agreed with this interpretation of events and they both decided to issue the
redundancy letters at the interviews. Both Miss Bisson and Mr Gallichan said that they
thought it was what the staff wanted. Mr Gallichan denied that the Company was
always going to miss out the individual consultation stage of the Policy.
51. On hearing the evidence in this case the Tribunal is of the opinion that on the 19th
September 2006 the staff of Apex „ganged up‟ on a sole inexperienced director forcing
him to make a decision on the redundancies. There should be some understanding that
the mood and exaggerated and hostile actions of the staff were extremely stressful to the
management of Apex. This extreme situation, in the opinion of this Tribunal, led to a
misunderstanding by Mr Gallichan of the desired outcome of the redundancy meetings
to be held that morning. The Tribunal is mindful that by this time all communications
between the parties had broken down and the staff were acting in a most unprofessional
manner. It is noted by the Tribunal that of the nine staff in work that morning seven
were involved in this dispute. This misunderstanding by Mr Gallichan is, in the opinion
of the Tribunal, completely understandable in the circumstances of this case and the
Tribunal do not find the effective missing out of the second consultation stage in the
redundancy policy unreasonable in these particular and extreme circumstances.
52. The Tribunal wish to point out that if the staff had not rebelled in this manner and the
second consultation stage had still been missed out by Mr Gallichan when conducting
interviews on the 19th September 2006, the Tribunal would have most certainly found
such omission and deviation from the Policy to be unreasonable.
53. What is clear to the Tribunal is that Mrs O‟Donnell, on being called into the board room
after all the previous employees had been spoken to about their redundancies by Mr
Gallichan, had absolutely no idea that she was going to be made redundant. Mrs
O‟Donnell gave evidence that she thought she was being summoned in order to receive
instructions in her HR role as to how the previous redundancies were to be effected. Mrs
O‟Donnell was called in last and was so unsuspecting that she did not even ask someone
to accompany her into the meeting.
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54. It is not clear whether Mrs O‟Donnell meant to appeal against her redundancy when she
wrote to Mr Gallichan on 19th September 2006. Mrs O‟Donnell asked to be given the
reasons for her redundancy and Mr Gallichan replied with a three page letter on the 29th
September 2006. The Tribunal considers that Mr Gallichan dealt with Mrs O‟Donnell‟s
enquiry in full. The redundancy letter of the 19th September 2006 gave Mrs O‟Donnell
the right of appeal and this is important. The Tribunal is mindful that Apex was in a
very precarious position in September 2006 …………………………………….. and simply
had to save costs. If an appeal had been held Mrs O‟Donnell could have presented
information about her work history and experience in an attempt to make the directors
reconsider their position. However, Apex had received the letter from JACS advising that
it was unable to assist Apex in dealing with the appeal stage of this redundancy process
and the Tribunal can understand why on receipt of this letter, Apex decided not to hold
formal appeal hearings. Accordingly, the Tribunal expresses no views on the lack of an
appeal in this case. In the circumstances of this case Apex‟s failure to conduct an appeal
hearing is not considered unreasonable.
Conclusion
55. The Tribunal have borne in mind the special circumstances of this case including the
poor leadership from management as well as the unforeseen problems and difficulties
faced by Mr O‟Reilly. The Tribunal accepts that Mr Gallichan finally had no choice but
to take over the procedure himself and that Apex is a small business and Mr Gallichan
was inexperienced in these matters. The Tribunal believes that Mr Gallichan did what
he thought was best in very difficult circumstances which included
…………………………………………. ………………………………………………………. In
addition, the Tribunal have chosen to believe Mr Gallichan‟s evidence that the poor
behaviour of the staff led him to believe that they wished the redundancy letters to be
issued that day, effectively missing out the second, consultation stage.
56. However, even taking into account all the special considerations of this case, the
Tribunal finds that the absolute failure of Apex to warn Mrs O‟Donnell of her potential
redundancy coupled with its failure to apply a selection process based on facts and
informed opinion, are not the reasonable actions of a reasonable employer. Accordingly,
the Tribunal finds that Mrs O‟Donnell was unfairly dismissed.
AWARD
57. Pursuant to Article 77 of the Law the Tribunal makes an Award of compensation to Mrs
O‟Donnell in accordance with the Employment (Awards) (Jersey) Order 2005. As Mrs
O‟Donnell had worked for Apex for more than 5 years she is entitled to receive 26 weeks
pay by way of compensation. Mrs O‟Donnell earned £721.15 a week.
£721.15 x 26 weeks = £18,749.90
The Issue of Mrs O‟Donnell‟s period of continuous employment
58. During the course of hearing evidence as to whether Mrs O‟Donnell was treated by Apex
as having been continuously employed since 13th August 2001 (the date she started work
for the Company now known as Apex) or 1st September 2004 (the date she came back to
work for Apex in a new role following her redundancy on 24th July 2004), Mr Gallichan
agreed that as far as he is concerned, Mrs O‟Donnell had been continuously employed
by Apex for the purpose of accruing benefits under the Company‟s holiday rules and
pension plan, since 13th August 2001 and the 2004 redundancy did not constitute a break
in service.
59. The Tribunal finds in accordance with Article 57 (3) (c) of the Law that Mrs O‟Donnell‟s
redundancy on 24th July 2004 and the subsequent period to 1st September 2004 when she
did not work does not by arrangement constitute a break in the period of her continuous
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service with Apex. Accordingly Mrs O‟Donnell was entitled to benefit from the
provisions in her contract of service with Apex rewarding employees who had given 5
years service to the Company and was thereby entitled to receive an extra week‟s paid
leave in 2006 and to have her contribution to the employee pension scheme increased to
7.5% of her gross monthly salary for the period from 13th August 2006 to 18th December
2006 inclusively.
Schedule of Awards
1. Article 77, compensation for unfair dismissal £18,749.90
126
Jersey Employment Tribunal
Case Number: 2011-204 / 06
Applicant: Stephen Brocken
Respondent: Minister for Home Affairs
Hearing on 6 August 2007
Before: Mr David le Quesne, Chairman
Mr Stewart Mourant, and
Mr William McPhee, Panel Members
Representation:
For Applicant: The Applicant represented himself
For Respondent: Respondent represented by Mr S. Guy-Gibbens, Prison
Governor.
1 Mr Brocken had worked in security for about 20 years before he joined the prison
service in January 2004; this was the fulfilment of a long held wish. The dream turned sour,
and in October 2006 Mr Broken resigned.
Mr Brocken claims that he was constructively dismissed by the Respondent and in his
claim form cites eight grounds which led to the relationship between him and his employer
breaking down to such an extent that he became ill and unable to work.
These eight grounds in paragraph 5.1 of the claim form are as follows:
1 Grievance not investigated
2 Health & safety. Duty of care not applied
3 Ambushed into meeting about absence
4 Harassed to get me back to work
5 Failure to provide adequate training and support
6 Compulsory overtime-no excuses
7 Failure to provide adequate staffing levels
8 Higher than anticipated exposure to risks.
During the course of the hearing these eight grounds to some extent merged and overlapped,
but in this judgment we shall consider each of them.
2 Both sides provided to us written summaries of their submissions on the relevant
points, and we found these very helpful; they much reduced the amount of oral evidence and
submissions.
3 Grievance not investigated
We heard evidence about several grievances which Mr Brocken said were not
investigated, or not properly investigated, after he reported them. One incident was a threat by
a prisoner to burn the skin off Mr Brocken‟s face by throwing a bowl of hot custard at him.
Another was when bleach was squirted at his face. Another was when a prisoner grabbed Mr
Brocken by the shoulder.
Of these incidents, the most important to Mr Brocken was that involving bleach; he
told us that the same happened to another officer shortly afterwards, and it was only after this
second incident that the bleach was removed.
The Respondent‟s evidence was that such incidents have to be assessed and
appropriate and proportional action taken. If, as in the case of the bleach, it is not known who
did the act, there is little that can be done unless and until further intelligence shows who was
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responsible. Mr Guy-Gibbens told us that he would not be prepared to, for instance, lock up
everybody in the wing until the malefactor owned up.
We do not think that the Respondent‟s handling of these incidents amounted to failure
to investigate. Mr Brocken may have thought that the resultant actions of the Respondent, as
he saw them, were not as vigorous as he expected; that does not mean that the grievances were
not investigated and that appropriate action was not taken; Mr Brocken was not senior or
experienced enough to know or even guess what was done by those in authority with the
information he reported on these incidents.
4 Health and Safety
This ground amounted to an allegation that the Respondent did not provide Mr
Brocken with a safe working environment; it overlaps with some of the other grounds. We
were left in no doubt that working at the prison can be dangerous, and that it is an inherently
stressful and difficult job. Prison officers are dealing with people who have committed, or are
accused of having committed, crimes, and those people do not want to be in prison. Those
factors alone, without the many other factors which enter the equation, lead to tension
between prisoners and guards. Nonetheless, despite the inherent dangers and risks, the
Respondent‟s employees do not surrender their rights to be looked after by their employer.
One illustration given by Mr Brocken was a serious incident in which, in June 2005,
some inmates barricaded themselves into a room and set it on fire and behaved in a violent
fashion. Mr Brocken told us that he and other officers were sent in to deal with this riot when
the police and fire services had refused to do so because of the danger.
The evidence of Mr Bertram, who was acting governor at the time, was very different,
and we accept what he told us. He said that the police and fire service and ambulance were
standing by, but they were not asked to assist and thus did not refuse. It was clear to us that
the way this matter was handled was organised and according to procedures.
This conflict of evidence illustrates to us what we perceive elsewhere in this case: what
may understandably have appeared to Mr Brocken in one light, from his position as a junior
officer, appeared in another light when seen from the better informed perspective of those
further up the ladder who were making the decisions.
Mr Brocken also referred to the risk to him of being left in sole charge of up to five
prisoners in the block where prisoners were held for failure to comply with regulations for
good order and discipline; at times, such as mealtimes, they were not in their cells. On the face
of it, this did sound risky, but the Respondent‟s evidence, particularly that of Mr Watkins, was
that an assessment was carried out, matching the known behaviour of the relevant inmates to
the required number of guards, so that if there were violent or unpredictable inmates, more
guards would be assigned.
Again, Mr Brocken would not have known of this assessment, so from his perspective,
it may have appeared to him that he was being put in some danger, but the fact is that he was
not.
5 Ambushed into meeting and harassed to return to work
We take these two grounds together. As far as the ambush is concerned, what Mr
Brocken says is that, when he attended a meeting with Mr Watkins and Mrs English (the
Respondent‟s human resources manager) in July 2006, he thought that it was to discuss his
grievances, which is to say the problems which were leading to his illness and inability to
continue working; in fact, at the start of the meeting he was surprised to be given by Mrs
English his employment record. Mr Brocken told us that he rose to leave, but remained when
Mr Watkins explained that his grievances and his employment record were linked.
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The fact is that Mr Brocken voluntarily attended the meeting, which at his request was
held at Big Vern‟s café at St Ouen, and he knew that he could leave. He did not leave, and so it
cannot be said that, even if he was “ambushed”, there was any consequence of the ambush.
We questioned Mrs English on the harassment point, for we were concerned that
contact was made with Mr Brocken whilst he was on sick leave, and he could have taken this
to be harassment. What Mrs English told us is that there is a balance to be struck. If the cause
of absence is, for instance, domestic trouble, it may not be right for the employer to contact the
employee. On the other hand where, as in this case, the cause of sick leave appears to be the
working conditions, it often is right to try to speak to the employee to find out what are the
problems so that the employer can try to address them. There is no point in waiting for the
employee to return to the same working conditions, for he is likely to be made ill again; it is
preferable to discuss with the employee before he returns to work the causes of his
unhappiness so that they can be addressed before he returns to work. We find this explanation
sensible and acceptable, and in our view the prime purpose of the meeting at Big Vern‟s, and
of the attempts to communicate with Mr Brocken, was to address the issues he had with his
work and working conditions; this purpose was justifiable and there was not harassment.
6 Failure to provide adequate training and support
There was no evidence to support the allegation that Mr Brocken was not sufficiently
trained, and in his written summary his opening sentence is “The training we were given was
fine, in the class room”. In fact, Mr Brocken refined the point, we think rightly, so that the
point he made was that the training did not really prepare him for the reality of life as a prison
guard. We accept this. However, this is a job, like that of a policeman or soldier, where
training cannot faithfully replicate the reality; it can only warn and prepare, so that the trainee
knows what to do when he confronts real-life situations in the prison.
We were concerned about the level of support for trainee prison officers, and we think
that at the relevant time it fell short of what would have been best practice, but the
Respondent said that there was always a training officer to whom trainees could go, and we
heard no evidence that Mr Brocken took this route. Whilst the Respondent may not have met
the requirements of best practice, we are not satisfied that it fell significantly short of
acceptable standards.
7 Failure to provide adequate staffing levels
The Respondent‟s evidence, which was not countered by the applicant, was that staffing levels
in Jersey were better than in the UK. That seems to us to be a reasonable measure, and no
other measure was proposed by the applicant. On that basis, we do not think that this
complaint has merit.
8 Higher than anticipate exposure to risks
This ground merges with grounds with which we have already dealt. Mr Brocken
clearly is a man of experience, with a background in the security world, and he told us that for
many years he had wanted to become a prison officer. We find it hard to believe that a man of
his calibre and experience would have been shocked by the reality of life as a prison guard. In
fact, Mr Brocken did not rely as heavily on this ground as on others, and we think he was right
not to do so, for we do not think that it has merit.
9 Compulsory overtime-no excuses
We have left this until last because it appears to us to be by far the strongest ground of
complaint.
We were provided with a record of Mr Brocken‟s overtime in 2004 and 2005, and it
shows that in 2004 he worked 385.5 hours overtime and in 2005 he worked 294.5 hours
overtime. In June 2004, which we picked at random, he worked about 69 hours overtime. Mr
Brocken told us that, whilst overtime was not in all instances officially compulsory, in effect it
129
was, because (a) as a trainee he did not want to step out of line by refusing overtime, (b) if he
refused overtime, that would increase the burden on his colleagues, (c) although permitted to
find a substitute to perform one‟s overtime, this was difficult, for everybody else was working
much overtime as well. We believe this.
Mr Guy-Gibbens and Mr Watkins agreed that the level of overtime (which is
dropping) was unacceptable, and clearly it was.
Mr Brocken complained not just about the amount of, in effect, compulsory overtime,
but about the short notice which was often given, and he told us of a bank holiday when he
was required to work overtime without notice, despite his plans to take his family shopping
and generally spend time with his wife and children.
All in all, we find that the amount of overtime which was required of Mr Brocken, and
the way in which the overtime arrangements were made, caused considerable, and
unacceptable, disruption and stress to Mr Brocken. Generally, an employee is entitled to a
reasonable balance between work and leisure, and this is particularly important when the job
is inherently stressful.
10 In April 2005 Mr Brocken was signed off work due to stress, and he returned to work
in July that year. During that period, the prison referred him to an occupational health service,
now called Capita Health Solutions. He missed the first appointment, but attended an
appointment in October, when he was back at work; he was found to be fully fit. Mr Watkins,
senior unit officer at the prison, interviewed him on his return to work and noted that Mr
Brocken was “under counselling for conflict, will keep employer advised of progress”.
In May 2006 Mr Brocken was again referred to Capita, because he was again signed off
work due to anxiety/stress/depression. Dr Gray of Capita wrote that Mr Brocken “clearly had
some very specific problems with his perception of how the Prison is managed and the risks
that he and other officers can be under because of the management style that he perceives”.
Mr Watkins and Mrs English met Mr Brocken at Big Vern‟s in June 2006 (the meeting
referred to earlier in this judgment) and they discussed Mr Brocken‟s time off work and,
primarily, his problems with the management of the prison and the risks he perceived.
Mrs English wrote to Mr Brocken on 6th July 2006 with two specific proposals
(a) to assign to him a line manager who could devise a development plan, meet for monthly
appraisals and support Mr Brocken and
(b) not to alter his shift pattern so that he could take his allocated rest days.
The terms of this letter show that the Respondent was doing its best to sort out the problems
so that Mr Brocken would be able to return to work. It is to be noted that the second proposal
would have dealt with the question of compulsory overtime, which has troubled us.
Thereafter, Mr Brocken failed to respond to all attempts to contact him.
11 We have to look at the cumulative effect of all the matters to which Mr Brocken had
referred us, and we have to decide if the effect was such as to destroy the relationship between
employer and employee. Put differently, was the cumulative effect such that it would not have
been reasonable to expect Mr Brocken to continue with his job.
First, we note that after his first prolonged sick leave, Dr Gray noted that Mr Brocken
had “been at work without any problems since his return on 7th July 2005 and is now happy in
his work environment and has come to terms with the situation within the Prison”. Taken
with Mr Watkins‟ note of his return to work meeting with Mr Brocken (see paragraph 10
above), we conclude that there was no reason at that stage for the Respondent to have any
apprehension that Mr Brocken might not be coping well with his work. Indeed, it appears that
he was coping well.
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Second, we note that the primary purpose of the meeting at Big Vern‟s was to address
the work related problems which by then had led to the second and final prolonged absence
from work. It was Mr Brocken who requested that the meeting should not be at the prison,
because he could not bear to have anything to do with the place. Most important, the purpose
of that meeting appears to have been achieved, at least to some extent, in that the Respondent
offered actions designed to assist Mr Brocken (see letter of 6th July referred to in paragraph 10
above).
Interestingly, Mr Brocken told us that this meeting was too late, in that “they were
shutting the door after the horse had bolted”. This suggests that there was nothing the
Respondent could do for the applicant by the time of the meeting; he had by then decided that
he could not return. It is difficult to know what to make of this, particularly in the light of
what Mr Brocken wrote at the top of page 13 of his written summary;
“On the 11th of September I wrote a letter of resignation as I felt that prison were going to finish
me due to my stress related sickness, brought on by working practices with the Prison……. I felt
they were not addressing any of the grievances I had informed them of.”
We believe that the Respondent did take reasonable steps to address the problems which
caused the first illness, and there was no reason for it to think that those steps were
insufficient. The Respondent tried to identify the problems leading to the second illness, at
the Big Vern‟s meeting, and was prepared to take steps to remedy the problems and to assist
Mr Brocken, but either it was too late as far as he was concerned (the horse had bolted), or he
failed to take advantage of the opportunity offered at this meeting and in the letter of 6th July
to make changes in order to make his working conditions more acceptable to him. In our
opinion, there was no significant failure by the Respondent, and there was nothing more that
it reasonably could do.
12 Having reached these conclusions, if follows that we do not agree that Mr Brocken was
constructively dismissed. Clearly he did not suit the job or the job did not suit him, and sadly
this caused Mr Brocken much stress and unhappiness and eventually led him to resign.
We have every sympathy for Mr Brocken, but we do not agree that he was constructively
dismissed.
131
Jersey Employment Tribunal
Case Number: 0102-028/07
Applicant: Miss Victoria Volante
Respondent: Poundworld
Hearing on 7 August 2007
Before: Mr David le Quesne, Chairman
Representation:
For Applicant: The Applicant did not appear
For Respondent: Mr Mark Meehan, Manager of the Respondent
The Applicant claimed that she had been unfairly dismissed in her Form JET 1 submitted to
the Tribunal on 1 February 2007. In her JET 1 she did not include a start date for her
employment and gave the date of her dismissal as 27 January 2007.
The Respondent, in its JET 2 Form submitted on 6 March 2007 claimed that she commenced
employment on 23 October 2006 on a three month fixed term contract and that her time spent
working as a „Saturday girl‟ should not count towards her period of continuous employment
and therefore the case should be dismissed as she did not meet the 26 week qualifying period
required by the Employment (Jersey) Law to be able to claim unfair dismissal.
Having satisfied myself from the file that the applicant had been sent notice of the hearing,
and she not having appeared, I dismissed her claim.
132
Jersey Employment Tribunal
Case Number: 2112223/06
Applicant: Robert Cumming
Respondent: Mrs Jean Holmes t/a HPG Upholstery
Hearing on 7 August 2007
Before: Mr David le Quesne, Chairman
Representation:
For Applicant: Mr Robert Cumming represented himself
For Respondent: Mrs Jean Holmes represented herself
1 Mr Cumming is an upholsterer. Whilst he was in prison in Jersey he worked at his
trade as directed by the prison authorities. From 13th February 2006 he was released daily on
licence to work as an upholsterer for Mrs Holmes, who trades as HPG Upholstery. He worked
five and a half days per week, and Mrs Holmes would collect him from the prison in the
mornings and he would return by bus in the evenings.
This release on licence stopped on 1st July 2006 because it was alleged that Mr
Cummings had broken the terms on which he was allowed out of prison. His prison term
ended on 31st August 2006, whereupon he went back to work for Mrs Holmes until 24th
November that year, when they fell out in circumstances which I shall relate later in this
judgment.
2 I have to decide the following matters
a) was a written contract of employment provided to Mr Cumming as required by article
3 of the Law;
b) was Mr Cummings employed by Mrs Holmes whilst he worked for her on licence from
the prison, or did his employment start on his release;
c) was Mr Cummings dismissed on 24th November 2006, or did he resign; if he was
dismissed, was he entitled to payment in lieu of notice;
d) what, if any, entitlement to holiday pay does Mr Cumming have;
e) is Mr Cumming due payment for work done on furniture for somebody who was not a
client of Mrs Holmes.
3 There is no doubt that Mr Cumming was not provided with written terms of his
employment; this was agreed by Mrs Holmes.
4 Whilst working on licence from the prison, Mr Cumming worked a full week for Mrs
Holmes, almost always five and a half days. Mr Cumming said that he chose to work for her, it
was not a decision made by the prison authorities. His payslips were made out to him, but the
money went to the prison to be held for him, less a deduction made by the prison. He worked
as an employee under the directions of Mrs Holmes. Nothing in the way he worked changed
once he was released from prison.
Mrs Holmes said that as far as she was concerned she employed Mr Cummings
through the prison. She and Mr Holmes agreed all matters concerning the terms on which he
worked for her, apart from the period of notice, on which they seem to have agreed to
disagree, and that the prison did not try to exercise control over the work that Mr Cummings
did for her. He was doing the same job for her on licence as he did for her after he was
released. She made the point, however, that whilst working for her on licence, Mr Cumming
was only available subject to prison requirements, so if there was a problem at the prison, he
might be delayed, as happened. Also, Mr Cummings obviously was not able to work for her
when his licence was revoked.
5 I have little difficulty is reaching the conclusion that Mr Cummings was employed by
Mrs Holmes whilst he worked for her on licence from the prison. There was very little
difference between what happened whilst he was on licence and what happened after his
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release. He lived in different accommodation, his wages were paid direct to him without any
deduction by the prison, and his availability for work was not dependent upon the
requirements of the prison, but I do not regard these matters as significant for the purpose of
determining the matter.
6 There was considerable dispute between the parties as to what happened on 24th
November, and I will not recite the different versions given to me. Clearly there was an
argument of some sort, and in such circumstances parties tend to say what they may later
regret, and tend later to have poor recollections of what has been said.
I believe that Mr Cumming resigned, rather than was dismissed. I accept, broadly, Mrs
Holmes‟ version because it makes more sense than the other version. I find it difficult to
believe, for instance, that Mrs Holmes was throwing Mr Cumming‟s tools out of the
workshop, or that the reason for the argument would have been regarded by her as sufficient
cause to sack Mr Cumming.
This means that Mr Cumming‟s claim to payment in lieu of notice is dismissed.
7 Mr Cumming claims in his JET 2 form that he is owed £400.00 for four days holiday
pay, and I agree that this is the case.
8 I do not need to go into any detail about the claim for payment for work done on
furniture referred to in paragraph 2e above, for during the hearing the parties agreed that
money was indeed due to Mr Cumming, and that it should be between £600 and £700. In his
claim form Mr Cumming claims £637.50, and that is the sum I award.
Summary
9 Referring back to the claims as listed in paragraph 2 above:
a) Mrs Holmes did not provide to Mr Cumming written terms of his employment as
required by the law. However, she had written down the terms, so her failure was not
as bad as in the case of a complete failure to have a written record. This is an offence
under the law for which a fine of up to £5,000 can be imposed. I order Mrs Holmes to
pay a fine of £200.00.
b) I have found that Mrs Holmes did employ Mr Cumming whilst he was working for her
on licence from the prison.
c) I have found that Mr Cumming resigned; he was not dismissed. Therefore, his claim to
payment in lieu of notice fails.
d) As I have stated, Mr Cumming is entitled to unpaid holiday pay of £400, and I
therefore order Mrs Holmes to pay him that amount.
e) I order Mrs Holmes to pay to Mr Cumming in respect of his work on the furniture the
sum of £637.50, which is well within the amount which she acknowledged was due to
him.
Schedule of Awards & Fines
Awards Amount
Payment in respect of unpaid Holiday to Mr Cumming £400.00
Payment in respect of work carried out on furniture £637.50
Total £1037.50
Fine Amount
Breach of Article 9 of the Employment (Jersey) Law 2003 £200.00
Total £200.00
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Jersey Employment Tribunal
Case Number: 1801-017/07
Applicant: Maria Jose Do Patrocinio
Respondent: Christine Jenkins
Hearing on 13 August 2007
Before: Mr David Le Quesne, Chairman
Representation:
For Applicant: The Applicant represented herself
For Respondent: The Respondent represented herself
1 Mrs Do Patrocinio worked as a cleaner for Mrs Jenkins since approximately 1995. In
fact, she worked at Mr and Mrs Jenkins‟ house, at their business in town, and for their
daughter, Nicola, both when she was living with her parents and when she had her own home.
By the end of her employment, she was working for 17 hours per week.
2 In January 2007 the Applicant returned from her holiday to work for the Respondent.
She told me that she said to the Respondent that she was now 60 and that she no longer had to
pay Social Security contributions, and was receiving her pension. She asked the Respondent if
she was happy with her work.
I asked why she had asked this question, and Mrs Do Patrocinio said that it was
because she had asked for and been refused an increase in pay before Christmas.
Apparently the Respondent‟s answer was that she would talk to her husband and her
daughter, and then give her response.
3 Subsequently, according to the complainant, the Respondent told her that she had
spoken to her husband and daughter, and she did not want the complainant to work any more;
she left her £80 for the work she had done since returning from holiday.
4 Mrs Do Patrocinio claims that she was unfairly dismissed and is owed holiday pay and
payment in lieu of notice. She also says that she was not provided with written terms of her
employment.
5 Mrs Jenkins and her daughter, Nicola, gave evidence. Mrs Jenkins‟ version of events
was that Mrs Do Patrocinio told her that she was now 60 and she had her pension, and she was
asking all her employers if they were satisfied with her work and wanted her to continue. She
said that she was lost for words, as she knew that the staff in the shop were not happy with the
complainant‟s work, and she was not, but she did not want to leave her daughter in the lurch,
so she said that she would talk to her husband and daughter and then give her answer.
The Respondent told me that she did indeed consult her husband and daughter and
“we decided a clean break was probably the best thing to do as Maria had given us the option
and we had some dissatisfaction as thing were not going smoothly. My daughter and I could
manage without help”. She therefore told the complainant that it was better if she did not
continue working for her.
The Respondent understood that as the complainant now had her pension, she was
content not to continue working because she did not need the money.
6 Miss Jenkins‟ evidence was similar to her mother‟s. She added that Mrs Do Patrocinio
had said to her that if she did not want her to continue working, she would stop immediately.
Her understanding was that the complainant felt that, because she now had a pension, she did
not need to work, and she was offering to stop if her employers wanted this.
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7 I have to decide if Mrs Do Patrocinio was dismissed or resigned. I have come to the
conclusion that she resigned, and I therefore dismiss her claim that she was unfairly dismissed
and I dismiss her claim for payment in lieu of notice.
I cannot be sure what words she used to the Respondent and her daughter but it sounds to me
as though the reasonable interpretation was along the lines of what Miss Jenkins said; if her
employer did not want her to continue working, she was content not to do so. I do not think
that what the complainant said when she returned after Christmas was the result of her not
being given a pay rise before Christmas, for even on her version of what was said, she did not
refer to that episode. If that was not the reason to saying what she said, it was indeed an odd
statement for her to make immediately on her return from holiday. I believe that she
genuinely was offering to resign. She may have been surprised when her offer was accepted,
but she did not say that this was the case.
Further, when the Respondent told her that she would consult her husband and daughter
before giving her answer, the complainant must have realised, if such was the case, that what
she had said had been misinterpreted; I would have expected her to say something
immediately to correct that mistake, but she did not. That suggests to me that she well
understood the position.
8 I uphold Mrs Do Patrocinio‟s claim for one weeks holiday pay, and order Mrs Jenkins
to pay her £124.00.
9 The complainant told me that she was not given written terms of her employment. The
Respondent told me that she did write such a document in her own hand and give a copy to
the Respondent; she retained a copy herself, but having moved house twice since then, she has
lost it.
Given this conflict of evidence, I am not prepared to make an assumption against the
Respondent, and accordingly make no order in respect of this allegation.
136
Jersey Employment Tribunal
Case Number: 3105-099/07
Applicant: Mr. Stanilaus Kropiunik
Respondent: Gunsite Café (2001) Limited
Case Summary: Provision of a contract of employment after employee has left
employment / provision of an itemised pay statement
Hearing on 11th September 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman
Mr. Stewart Mourant and Mr. Paddy Kirwan, Panel Members
Representation:
For Applicant: The Applicant represented himself
For Respondent: Mrs Jayne Cullen, director, on behalf of the Respondent.
The Facts:
1. Mr Kropiunik was employed as a counter assistant by the Respondent from 3rd April
2007 to 13th April 2007 when he left the business of his own accord. On the 31st May
2007 Mr Kropiunik filed a Form JET 1 with the Tribunal complaining that:
 he had not been paid in full for two bank holidays that he worked during his
employment
 he had not been paid for the hours he worked on the 3rd, 4th and 13th April 2007
 that he had not received a written statement of the terms of his employment
until the 22nd August 2007
 that he had not been given an itemised an itemised statement of the pay he had
received in accordance with the principles of the Employment (Jersey) Law
2003. („the Law‟)
The Tribunal has taken each of these complaints in turn.
Bank Holiday Pay
2. By Articles 11 and 13 of the Law an employee is entitled to a paid day‟s leave on Good
Friday and Easter Monday. An employee may work for his employer on those days but
he must receive either a further day‟s pay for such day worked or a paid day off in lieu
of such public holiday.
Mr Kropiunik worked on Good Friday and Easter Monday and had received a day and
a half‟s pay for each of those public holidays in accordance with the employer‟s then
employment practice. The Respondent acknowledged at the hearing that this is incorrect and
is willing to pay to Mr Kropiunik two half day‟s pay to Mr Kropiunik in compensation.
Mr Kropiunik worked 8 hours a day and was paid £6.00 per hour so, 2 half day‟s pay is
4 hours x £6.00 per hour x 2 = £48.00
Time worked but unpaid
3. Mr Kropiunik claimed that he worked for the Respondent on the 3rd and 4th April 2007
but was not paid for those days.
4. Mr Kropiunik claims that he worked a full day on Friday 13th April 2007 and was not
paid. This is acknowledged by the Respondent. It was agreed that Mr Kropiunik owed
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an hour‟s pay to the Respondent from previous time off and that this should be
deducted from his pay due in respect of the 13th April 2007.
5. Mr Kropiunik said in evidence that he started work for the Respondent on 3rd April
2007 and that he worked that day in the café and the next, the 4th April 2007.
6. Mrs Cullen said in evidence on behalf of the Respondent that she had engaged Mr
Kropiunik on 3rd April 2007 but he did not work that day or the next day, 4th April 2007
as the café was closed. Accordingly, Mr Kropiunik started work on the 5th April 2007.
7. The Respondent produced a copy of its wages book which indicates that the café was
indeed closed on 4th April 2007. There is also a note which says, „Stan started Tues 3rd‟.
As an insert someone has written in „1st day worked Thurs‟. The Respondent‟s Social
Security return for the second quarter of this year states that Mr Kropiunik started
work on the 3rd April 2007 and finished on the 13th April 2007.
8. It is unusual that the Respondent should describe Mr Kropiunik on the social security
return as starting employment on the 3rd April 2007, the date it says it engaged his
services, instead of the 5th April 2007 the date it says he actually started to work. In
some jobs people are engaged to work perhaps a few weeks or months before they
actually start work for a new employer but it would be misleading to describe those
people as an employee of the new employer during this time.
9. Mr Kropiunik is adamant that he worked on the 3rd April 2007. The Tribunal notes that
evidence was heard that the Respondent paid its wages on a weekly basis from Friday
to Thursday. The Tribunal is satisfied that the café was closed on Wednesday 4th April
2007. The Tribunal is also satisfied that Mr Kropiunik was paid for the 5th April 2007
with his following week‟s wages and that 13th April 2007 was overlooked with his final
pay.
10. There is clearly confusion by the Respondent regarding the dates that its employees
worked and the status of persons it has engaged before they commence work. This
confusion leads the Tribunal to believe that on the balance of probabilities that Mr
Kropiunik worked for the Respondent on the 3rd April 2007 and he is hereby awarded
a day‟s pay for those services.
11. The Tribunal is satisfied that the Respondent‟s business was closed on the 4th April
2007, and Mr Kropiunik‟s claim for a day‟s pay on that date is hereby dismissed.
12. Accordingly Mr Kropiunik is awarded the following sums:
3rd April 2007 - 8 hours @ £6.00 per hour = £ 48.00
4th April 2007 = £ NIL
13th April 2007 - 7 hours* @ £6.00 per hour = £ 42.00
Total due = £ 90.00
*(being 8 hours worked less 1 hour due to be repaid to the Respondent in accordance with
paragraph 4 above).
Contract of Employment
13. By Article 3(1) of the Law an employer is required to provide a written statement of the
terms of employment to an employee within 4 weeks of that employee starting work.
Article 3(7) of the Law requires that statement to be provided even if the employee
leaves within the 4 week period. Article 9 of the Law states that failure to comply with
this provision is an offence punishable by a fine not exceeding £5,000 (being level 4 on
the standard scale) in accordance with the Criminal Justice (Standard Scale of Fines)
(Jersey) Law 1993.
138
14. The Respondent acknowledges that it did not provide a written statement of the terms
of employment of Mr Kropiunik in accordance with Article 3 of the Law.
15. Mrs Cullen explained on behalf of the Respondent that she believed that as Mr
Kropiunik was engaged on a 4 week trial period, which he did not complete, she did
not have to provide him with a contract of employment. Mrs Cullen stated that on the
successful completion of the trial period Mr Kropiunik would have received a contract
of employment. Mrs Cullen also explained that she had been on the JACS website and
did not read any information which indicated that she was incorrect. However after
receiving Mr Kropiunik‟s JET 1 form, the Respondent took advice from JACS and sent
him a copy of a contract of employment on 22nd August 2007. The Respondent believes
that it did all that it could in the circumstances.
16. The Tribunal takes the view that the Law had been in force for nearly 2 years by the
time Mr Kropiunik joined the Respondent. It is not possible for an employer not to
know that contracts of employment (written statement of terms) must be provided to
all employees. Furthermore information is available from various sources including
JACS and its website and training courses. The Tribunal has looked at the JACS
website and finds that all references to „written statements‟ of terms revert back to a
page which expresses the provisions of Article 3 of the Law. Only one page, entitled
Contracts of Employment‟ does not include a reference that written statements must be
provided even if an employee leaves within the initial 4 week period. However a
thorough search of the subject on the website does disclose this information. The
Tribunal finds Mrs Cullen to be an educated, articulate witness who is quite capable of
negotiating a website for information or finding it from another source.
17. The Tribunal is minded to fine the Respondent the sum of £1000 for failing to provide
a written statement of terms in accordance with Article 3 of the Law. However, it is
aware that this is the first time the fines in this area have been increased and that the
Respondent operates a small business. Accordingly it will in this case reduce the
amount of the fine it would like to impose.
18. The Tribunal therefore fines the Respondent the sum of £750.00 for failing to comply
with Article 3 of the Law.
The Pay Statement
19. Mr Kropiunik produced a wage envelope marked:
Stan 381.00
Soc 22.86
358.14
Mr Kropiunik said this envelope was given to him by in respect of his wages earned
from Thursday 5th April to Thursday 12th April 2007.
20. Mrs Cullen said that they did not use envelopes like this and that all the Respondent‟s
wage envelopes set out details as follows:
Name
Hours £
B/H £
ITIS £
Soc Sec £____________
Total
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21. Mr Kropiunik gave evidence that all the Respondents‟ employees received envelopes
like this on 13th April 2007. Mrs Cullen expressed surprise at this evidence but
acknowledged that the handwriting on the envelope did look hers.
22. On the balance of probabilities the Tribunal finds that the wage envelope produced by
Mr Kropiunik was given to him on the 13th April 2007.
23. Article 51 of the Law states that an employee has the right to receive a written itemised
pay statement at or before the time his wages are paid to him. This statement must
include particulars of:
 the gross amount of wages
 the amounts of any variable deductions from that gross amount
and the purpose for which they are made
 the net amount of wages payable to the employee.
The Tribunal would consider it good practice if such pay statement were on a separate
piece of paper, delivered in a closed non-transparent envelope.
24. Article 53 of the Law allows an employee to refer a question regarding the particulars
which ought to have been included or referred to in a pay statement to the Tribunal for
determination. The Tribunal finds that Mr Kropiunik made such referral to the
Tribunal within the time limit referred to in article 53(4) of the Law.
25. The Tribunal notes that Article 51 of the Law requires a pay statement to contain
details of „the gross amount of the wages‟. During the week in question Mr Kropiunik
worked his normal hours for the week but he was also paid an extra half days pay for
each Bank Holiday worked (see paragraph 2 above) and he also received payment for
his work on Thursday 5th April 2007 which should have been included in the previous
weeks wages (see paragraph 9 above). However, Mr Kropiunik‟s wage envelope refers
merely to „Stan 381‟; there is no mention of how this sum is calculated. The wage
envelope does refer to a social security deduction made as, „soc 22.86‟ which is accurate
if imperfect. The Tribunal understands that Mr Kropiunik is registered for ITIS at 0%
but the wage envelope makes no reference to the possibility of an ITIS deduction. The
Tribunal is particularly critical of the fact that the wage envelope makes no reference
to the period in respect of which the wages are paid which is an important fact.
26. The Tribunal notes that Mr Kropiunik did not receive details of the calculation of the
wages contained in the „Stan 381‟ envelope until 31st August 2007 more than 4 months
after he left the employ of the Respondent.
27. The Tribunal concludes that whilst the words „Stan 381‟ on the envelope did refer to
Mr Kropiunik gross wages, such reference is not sufficient to satisfy the spirit of the
provisions of Article 51 of the Law. An itemised pay statement must include details of
the dates such wages were earned and how such gross wages are calculated thus
reflecting the different rates that may be payable at different points in the pay period.
The Tribunal also finds that the statement „soc 22.86‟ is unacceptable as a description
of a deduction made from wages. An employee is entitled to clear, explicit details of
the calculation of his wages during each pay period otherwise Article 51 is not
satisfied. Again, it is unacceptable, nearly 2 years after the introduction of the Law that
an employer should not attempt to find out what its responsibilities are in this matter
from one of the reference points available such as the JACS website.
28. By Article 55 of the Law, a breach of Article 51 is an offence punishable by a fine not
exceeding level 4 (£5,000) on the standard scale prescribed by the Criminal Justice
(Standard Scale of Fines) (Jersey) Law 1993. The Tribunal hereby fines the Respondent
the sum of £750.00 in respect of this breach of Article 51 of the Law.
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Schedule of Awards and Fines
Awards
1 Bank Holiday Pay due £48.00
(Articles 11 & 13 of the Law)
2 Time worked but unpaid £90.00
(Article 86 of the Law)
Total Award £138.00
Fines
3 Failure to provide written statement £750.00
(Article 3 of the Law)
4 Failure to provide an itemised pay statement £750.00
(Article 51 of the Law)
Total Fines £1,500.00
TRIBUNAL NOTE:
The Tribunal wishes to point out that to date it has dealt with breaches of certain fundamental
provisions of the Employment (Jersey) Law 2003, such as Article 3 and Article 51, by levying
modest fines, in order to allow the new provisions of the Law to settle in and become common
employment practice in Jersey. However, the Law has been in force for over 2 years. The
Tribunal hereby warns that breaches of these types of fundamental employment rights will
not be treated lightly and miscreant employers can expect the fines levied by the Tribunal for
these types of offences henceforth to rise sharply.
141
Jersey Employment Tribunal
Case Number: 0602-032/07
Applicant: Captain Laura J Cook
Respondent: Aurigny Air Services Ltd
Case Summary: Treatment of holiday pay following termination of employment
Hearing on 27th September 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman,
Mr Peter Woodward and Mr Alan Hall, Panel Members
Representation:
For Applicant: Captain Cook represented herself
For Respondent: Mr Julyan Gardener–Wheeler, Flight Operations Administrator
The Facts
1. Captain Cook was employed by the Respondent (“Aurigny “) as a Shorts 360 first
officer initially on a one year contract commencing 10th October 2005, although this
contract was extended until 6th January 2007 on the same terms (“ the Contract ”)
2. On leaving the employ of Aurigny, Captain Cook complained to the Jersey
Employment Tribunal (“the Tribunal”) that she had not received:
 Her full holiday entitlement
 Her annual attendance bonus, or
 Her full night duty allowance.
The Tribunal has looked at each of these points in turn:-
Holiday Entitlement
3. The Contract entitled Captain Cook to 20 days leave per annum. In addition the
Contract awarded her an additional 8 days leave by way of compensation for bank
holidays or public holidays which crop up over a year and which she may or may not
have been required to work. Christmas Day was deliberately left out of the 8 days
bank holiday compensation because the staff were very rarely required to work on that
day and all staff received a day‟s pay for that holiday in any event. This information
was agreed by both parties. Accordingly Captain Cook was entitled to a minimum of
28 days total leave during the year 2006.
4. Mr. Gardener–Wheeler pointed out to the Tribunal that although it was highly
unusual for staff to work on Christmas Day, it had been known to happen in
emergencies and a basic, skeleton staff were rostered to work on 25th December 2006.
The parties explained to the Tribunal that being rostered to work was the same as
being available to work and a rostered pilot was subject to restrictions on their
personal time.
5. The Tribunal finds that a pilot rostered to work on Christmas Day should in fact be
treated as working on that day, and that in accordance with Article 11(6) (ii) of the
Employment (Jersey) Law 2003 (“the Law”) a further day‟s pay is awarded to Captain
Cook as compensation for such bank holiday worked.
6. Accordingly Captain Cook‟s annual holiday entitlement for 2006 was 29 days paid
leave.
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7. It was agreed between the parties that Captain Cook had taken 16 days leave during
2006, leaving a balance of 13 days. It was further agreed by the parties that Captain
Cook had been paid for 8 days accrued leave on leaving the employment of Aurigny. It
was acknowledged by the parties that in the period 1/1/07 – 6/1/07 ( the date of expiry of
the Contract), Captain Cook had been rostered for 2 rest days but the remaining 4 days
had been treated as holiday by Aurigny and taken out of Captain Cook‟s remaining
annual entitlement of 5 days without her consent.
8. Mr. Gardener-Wheeler on behalf of Aurigny pointed out to the Tribunal that the terms
of the Contract clearly allow Aurigny to exercise a discretion so that, “any remaining
holiday entitlement might form part of the notice period”, and that Aurigny had
exercised such discretion in this case in respect of the 4 days leave imposed on Captain
Cook between 1st and 6th January 2007. Mr. Gardener-Wheeler also pointed out that the
Contract states that, “all leave must be taken in the current holiday year. Leave not
taken at the end of the holiday year will be forfeited except where authorized by the
Managing Director”.
9. Captain Cook replied by pointing out to the Tribunal that she had been allowed to
carry forward into 2006 the leave she had accumulated in the period 10/10/05 (the date
of commencement of her Contract ) to 31/12/05. This permission had been granted by
Miss Lucia Sugden the Crewing Manager without the apparent authorization of the
Managing Director. Furthermore, Captain Cook had explained to Captain David Rice,
her senior officer , shortly after learning that the aircraft she was employed to fly
might be withdrawn within 12 weeks of March 2006, that she wished to „bank‟ her
remaining leave in 2006 in order to maximize her payment on leaving Aurigny, and
that Captain Rice had agreed to this plan. Accordingly Captain Cook had discussed
this with Lucia Sugden who had noted it, and because of the treatment of her 2005
leave by Miss Sugden, Captain Cook had assumed that Miss Sugden had the authority
to deal with this matter. Captain Cook said in evidence that there had been no mention
by either Miss Sugden or Captain Rice of the Managing Director of Aurigny
sanctioning this plan. In fact Captain Cook explained that she had taken 3 days leave
in October 2006 because she knew by then that she would be employed to the end of
the year. The remaining 2 days were taken due to a family bereavement. Captain Cook
explained that she deliberately „banked‟ the rest of her holiday leave as planned.
10. Captain Cook gave evidence that other Aurigny pilots who flew the same aircraft as
her but who were on permanent contracts of employment, were stood down on full pay
after 1st January 2007 (the date the airplanes became non-operational) and not forced to
take their holiday leave during this period. Mr. Gardener- Wheeler countered that the
difference was that Captain Cook was in her notice period and Aurigny chose to
exercise its discretion under the Contract as to whether to make her take unused leave
during this time. Mr. Gardener-Wheeler also pointed out that Miss Sugden had no
authority to make decisions without referring to Captain Rice. Mr. Gardener-Wheeler
did not produce a witness statement from either Miss Sugden or Captain Rice about
this matter.
Decision
11. The Tribunal finds that Captain Cook is a credible witness. Aurigny produced no
witnesses or witness statements to show that it had not been agreed between Captain
Cook and Aurigny that her leave in 2006, as it accrued due, could not be carried
forward to the end of her Contract in order that Captain Cook could leave Aurigny
with a lump sum when the Contract expired. The Tribunal finds on the balance of
probabilities that there was an agreement between Captain Cook and Captain Rice and
Miss Sugden that her leave in 2006 would be banked and carried forward to the end of
the Contract. Accordingly, Aurigny incorrectly exercised its discretion in deciding to
incorporate 4 days of Captain Cook‟s leave into her notice period, as this action
143
breached the overriding verbal agreement of the parties in this matter. The Tribunal
hereby awards the sum of 4 days leave to Captain Cook.
12. The Tribunal also finds that Mr. Gardener-Wheeler‟s reference to the forfeit of holiday
leave not taken in a leave year, is misleading. Firstly it was not disputed by Aurigny
that Captain Cook carried her 2005 holiday entitlement into 2006. Secondly, at the time
Captain Cook left the employ of Aurigny, it was operating a leave year of 1st April to
31st March. Captain Cook finished her employment on 6th January 2007, thus within the
leave year so the question of carrying forward holiday leave simply does not arise.
AWARD
13. The Tribunal have used Captain Cook‟s final wage slip as its reference point in
calculating the Award due to Captain Cook.
Captain Cook earned £424.19 gross between 1st – 6th January 2007. This is £70.70 per day.
The Tribunal hereby awards the following sums to Captain Cook:
In respect of the 4 days annual leave incorrectly imposed upon Captain
Cook during the notice period of the Contract – £70.70 x 4 days
£282.80
In respect of Christmas Day 2006, an extra days pay, being a public holiday
worked by Captain Cook – £70.70 x 1 day £70.70
A total of £353.50
The Attendance Scheme
14. Aurigny operated an attendance scheme during the period of Captain Cook‟s
employment. Mr. Gardener-Wheeler acknowledged that Captain Cook was entitled to
receive a payment of £190 as an attendance allowance bonus for 2006 and that this
amount had not been paid to her.
15. The Tribunal hereby awards the sum of £190.00 to Captain Cook in respect of her
entitlement under the Annual Attendance Bonus Scheme operated by Aurigny,
pursuant to article 86 of the Law.
Night Duty Allowance
16. Aurigny acknowledged that Captain Cook is entitled to receive two payments of £12.48
each in respect of two night duties worked in December 2006.
17. The Tribunal hereby awards the sum of £24.96 to Captain Cook in respect of her
entitlement to two night duty allowances, pursuant to article 86 of the Law.
Schedule of Awards
1. Holiday Pay due (5 days) £353.50
2. Annual Attendance Bonus £190.00
3. Night Duty Allowance (2 nights) £24.96
Total £568.46
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Jersey Employment Tribunal
Case Number: 0501003/06
Applicant: Mr Thomas Brown
Respondent: Mr F Gerald Voisin
t/a Voisins Department Store
Hearing on 1st October 2007
Before: Mr David le Quesne, Chairman,
Mr Stewart Mourant and Mr Alan Hall, Panel Members
Representation: The parties represented themselves.
1 The applicant, Mr Brown, was employed by the defendant, who trades as Voisins
Department Store, from January 1999 until he was given notice of termination of his
employment by Mr Voisin on 7th September 2005. Initially his job was commercial manager,
and then he was promoted to general manager.
Previous proceedings
2 This application was first heard by a differently constituted Tribunal last year, and on
17th July 2006 that Tribunal delivered its decision, in which it held that Mr Brown had been
unfairly dismissed, and it awarded him £32,468.80.
Mr Voisin appealed to the Royal Court on a point of law pursuant to Article 94 of the
Employment Law 2003 (the „Law‟).
3 On 21st February 2007, the Royal Court upheld the appeal on the basis that the
Tribunal had misdirected itself in law. That misdirection had two main limbs. First, the
Tribunal did not apply the „band of reasonableness test‟ (which I shall explain below) which
the Deputy Bailiff said “lies at the heart of the Tribunal‟s role under the 2003 Law”. Second, it
elevated to absolute requirements of fairness four general principles enunciated by the House
of Lords in Polkey v A.E. Dayton Services Limited [1988] AC 344.
4 Having upheld the appeal, the Royal Court remitted the case back to a differently
constituted Tribunal to hear the case, using the correct tests.
5 Since the Royal Court hearing, I have given various directions aimed towards
achieving a fair and practical re-hearing. I do not need to recount these directions, save for
what I said at a directions hearing on 5th September 2007, which was “the parties have agreed
that the re-hearing can proceed without further evidence being heard; they are content that the
Tribunal will make its decision on the basis of the existing materials…”. I went on to say that
the “materials on which the Tribunal shall make its decision shall be the original bundle, the
Tribunal decision and the Royal Court decision” and “the facts on which the Tribunal is to
make its decision will be as stated in the two previous decisions”.
As a result of this eminently sensible approach by the parties, the re-hearing took but half a
day, instead of the three days which had been set aside.
The Band of Reasonableness
6 The Royal Court decision refers to authorities on the band of reasonableness test, and I
shall not repeat them. The Royal Court referred to Iceland Frozen Foods v Jones [1982] IRLR
439, and I quote from its decision:
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“(5) The function of the [Employment] Tribunal, as an industrial jury, is to determine
whether in the particular circumstances of each case the decision to dismiss the
employee fell within the band of reasonable responses which a reasonable employer
might have adopted. If the dismissal falls within the band the dismissal is fair; if the
dismissal falls outside the band it is unfair.”
The important point is that the Tribunal does not impose its own decision unless it finds that
the employer‟s decision was outside the area or band of decisions which a reasonable
employer might reasonably have made in the circumstances.
The four principles
7 These are procedural steps which, in the majority of cases, are required of an employer
if his dismissal of an employee is to be treated as fair. But, they are only procedural steps, and
they are not of universal application; they are not rules, but guiding principles.
In Polkey (see above), Lord Bridge said “ ….in the case of redundancy, the employer will
normally not act reasonably unless he warns and consults any employees affected or their
representative, adopts a fair basis on which to select for redundancy and takes such steps as
may be reasonable to avoid or minimise redundancy by redeployment within his own
organisation.”
8 We have heard the parties‟ submissions to us and we have very carefully studied the
decisions of the Tribunal and the Royal Court, for, as agreed, we had to make our decision
only on the evidence as related in those decisions. As appears below, we have considered each
of the four principles individually, and then we have looked at the whole picture to determine
whether or not the action of the employer, Mr Voisin, was reasonable.
9 The first three principles or procedural steps are the duty to consult, to warn of
redundancy and to establish fair criteria for selection of employees for redundancy.
We have concluded that this is not a normal case, for the reasons given by the Royal Court. Mr
Voisin is and was the sole proprietor of the business; he decided to cease being a States
member and concentrate on his business, and this decision was made against the background
of his concern about the profitability of the business. There already had been some loss of
jobs by redundancy and retirement, but Mr Voisin had determined that he would have to
reduce management costs.
There is no doubt that Mr Voisin genuinely made these decisions and that, as owner of the
business, he was entitled so to do.
Having made those decisions, it was not realistic for Mr Voisin to contemplate any job in his
business other than that of, effectively, managing director, which really was the job being
done (albeit not in the context of a company) by Mr Brown. Again, this was a decision which
Mr Voisin was entitled, as owner of the business, to make on his own.
10 It would have been futile, merely an empty obeisance to procedural guidelines, for Mr
Voisin to have consulted with Mr Brown. Mr Brown was not going to persuade Mr Voisin to
remain in the States, not to work in his own business, or to work in his own business in a
capacity junior to Mr Brown‟s.
11 Similarly, it would have been futile for Mr Voisin to have warned Mr Brown that he
was considering making him redundant. That would have achieved nothing, for it was a
matter on which Mr Voisin was entitled to make up his own mind. What would Mr Brown
have done had he been warned? There was nothing he could have done, other than worry for a
few extra days.
12 There was no point in Mr Voisin establishing criteria for selection of employees for
redundancy. Mr Voisin, as owner of the business, wanted to take over as managing director.
The only criterion available was to establish who already had that job, for that person, and
nobody else, had to go to make room for Mr Voisin.
146
13 The fourth principle is the duty to explore alternatives to redundancy, and this is the
one which caused us some concern. However, on proper analysis, the problem is not difficult
to resolve. Mr Voisin made the two decisions which he was entitled to make, that he would
manage his business and that he had to cut management costs. If he were to manage his
business, the person hitherto managing it, Mr Brown, could not continue to do so; he would
have to be moved.
We are satisfied that Mr Brown could only move in one of two directions: out of the business,
or down the ladder. Mr Brown could not move down the ladder, even if he had been prepared
to take a lower salary and a lower position, without dislodging somebody from his/her job.
We do not believe that this procedural principle requires the domino theory to apply, so that
everybody moves down a step in the ladder, with the person at the bottom being the one to
leave.
14 The circumstances of this case are unusual, and we find that the four principles cannot
meaningfully be applied. That, however, is not the end of the matter, for that only disposes of
the adequacy of the procedural steps. The fact that these normal procedural guidelines are not
followed does not necessarily mean that the dismissal was unfair. We still have to consider
whether the decision to make Mr Brown redundant was a reasonable decision.
15 We find that it was reasonable for Mr Voisin to dismiss Mr Brown on the ground that
his job was redundant.
We pressed Mr Brown for other reasonable decisions which Mr Voisin might have made in the
circumstances (that is to say the circumstances related above). He could only suggest that Mr
Voisin could have offered him the job of the operations manager. That would not have been a
reasonable decision. The evidence was that the operations manager was performing her job
satisfactorily, and Mr Voisin had no reason to dismiss her; had he done so, as he pointed out,
she probably would have had a claim against him for unfair dismissal. It was not the
operations manager‟s job which was redundant.
As Mr Brown‟s answer indicates, there was not really a band of reasonableness in this case.
Given the circumstances, there were only two courses open to Mr Voisin, to make Mr Brown
redundant, or to offer him a job lower down the ladder, at the expense of another employee.
As we have said, this latter course would not have been reasonable.
Our decision is fortified by the evidence that, at least at the time, Mr Brown was not interested
in redeployment within the business, for he rejected the offer of JACS to see if this could be
arranged.
16 Whilst we reject Mr Brown‟s claim that he was unfairly dismissed, we think it right, if
only for guidance of employers, to say that the way in which Mr Brown was treated by Mr
Voisin fell short of good practice. Mr Voisin informed Mr Brown that he was to be made
redundant in a brief conversation in which little explanation was given. A few days later there
was another, fuller, conversation. Subsequently, the parties agreed terms, only for Mr Voisin
the next day to say that he had changed his mind about those terms, and other terms then were
agreed.
Mr Brown told us that he had worked for Mr Voisin contentedly for seven years and he had no
inkling that the axe was to fall on him. The cavalier fashion in which Mr Voisin treated Mr
Brown can only have increased his unhappiness.
An employer should be sensitive to the impact of dismissal upon an employee. He should
plan how he is going to deal with the employee so as to mitigate the shock to the employee,
and the damage to his self esteem. One would expect there to be a meeting in an office with
both parties sitting, and a full explanation given by the employee.
147
Jersey Employment Tribunal
Case Number: 0901-010/07
Applicant: Mr D Richard Waters
Respondent: R. Le B. Limited
Case Summary: Unfair dismissal by way of selection for redundancy; provision
of written statement of terms; provision of pay statement
Hearing on 4th October 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman,
Mrs Sue Armes, and Mr Samuel Le Breton, Panel Members
Representation:
For Applicant: Mr Waters represented himself
For Respondent: Mr Richard Le Boutillier, director
Witnesses: None
The Facts
1. Mr Waters was employed as a herdsman by the Respondent for Woodlands Farm („the
Farm‟) between 1st June 2005 and 18th November 2006.
2. Mr Le Boutillier was concerned that the Farm was not as profitable as it could be and
during August and September 2006 he met Mr John Jackson, the Dairy Husbandry
Advisor of the Planning and Environment Department of the States of Jersey („Mr
Jackson‟).
3. Mr Le Boutillier prepared a Dairy Industry Costing Scheme report which was
discussed with Mr Jackson at these meetings. Mr Jackson also advised Mr Le Boutillier
in a letter sent in December 2006 that,
„In the variable costs the high price of purchased feeds was identified in our discussion
……………………………………………………………………………………….. The vet and
medicines cost was also on the high side, again related to the number of young stock. The
cost of dairy sundries was also high which you were to investigate to identify the
reasons.
With relation to the fixed costs the major concern was the high cost of paid labour which
coupled with a high contract hire cost was the major worry to the future of the business.
With the above being identified we discovered various options to reduce the above costs
including the number of farm staff and/or doing without a dedicated herdsman/manager.
The overall performance of your business is
………………………………………………………………………………………………………
……………………………. The future viability of your business depends on the above
improvements being implemented‟.
4. Mr Le Boutillier considered Mr Jackson‟s advice carefully and decided that Mr Waters‟
position as herdsman could not be sustained by the Farm. Mr Waters‟ position came
with a 2 bedroomed cottage on the Farm, which together with his salary made a
financial package of approximately £35,000 p.a. Mr Le Boutillier informed the Tribunal
that the average EBITDA of dairy farms in Jersey is …… .
148
5. At this time the Respondent employed 5 other employees apart from Mr & Mrs Le
Boutillier and Mr Waters, being all Polish workers and all working for minimum
wage. These employees were accommodated in bedsits around the Farm the rental for
which formed part of their remuneration.
6. One of these workers, identified here as RG, worked as an assistant to Mr Waters but
she also had broad skills which were used around the farm. It was acknowledged by
both parties that RG is a hard worker. Mr Le Boutillier described her as „an excellent
employee‟. It was agreed that Mr Waters is an experienced herdsman and had taught
RG her skills in relation to the cows on the Farm. RG had been employed by the
Respondent since April 2004.
7. The other workers on the Farm in September 2006 were a couple who undertook
cleaning and mechanical jobs on the Farm, a builder who was building a new milking
parlour and a woman who helped with the cows and also served in the Farm‟s shop.
8. Following Mr Jackson‟s advice Mr Le Boutillier was seriously considering operating
the Farm without a herdsman in order to save costs. He envisaged the herdsman‟s role
being split between RG and himself, perhaps with support from another worker on
the Farm. He was aware that the opening of the new milking parlour would allow the
cows to be milked and processed in a more efficient manner than that presently
operated.
9. Unfortunately, on the 17th September 2006 Mr Waters suffered a serious injury to his
hand whilst at work which resulted in the amputation of his right index finger. Mr
Waters was in hospital for about 2 weeks leaving his partner and their very young
baby at home. It was acknowledged by both parties that this was a very difficult time
for Mr Waters and his family.
10. On the 4th October 2006, just after Mr Waters‟ release from hospital, Mr Le Boutillier
visited Mr Waters at home and informed him that he was thinking of changing the
way in which the farm was run, in particular dispensing with a herdsman and milking
the cows himself with the help of RG, and perhaps another worker. Mr Le Boutillier
said in evidence that he discussed Mr Jackson‟s advice with Mr Waters, but Mr Waters‟
denied that such a discussion took place.
11. At the end of the meeting on the 4th October 2006 Mr Le Boutillier said he would leave
Mr Waters to think about his position and come back to him in a week or so for his
decision. Mr Waters told the Tribunal that at the end of the meeting he was unclear
whether he was being sacked or had been made redundant and the conversation was
very unsettling and unsatisfactory. However Mr Le Boutillier had offered to give 4
weeks sick pay to Mr Waters.
12. On the 16th October 2006 Mr Le Boutillier and Mr Waters met again to discuss the
situation and Mr Le Boutillier confirmed that Mr Waters was being made redundant
because the Farm no longer required a herdsman. Mr Le Boutillier invited Mr Waters
to apply for the post of „Farm Manager/Tractor Driver‟ which was being advertised but
this was declined by Mr Waters. It was openly acknowledged by both parties at the
hearing that this post was not for Mr Waters as he is an „animal person‟ and not a
tractor driver/mechanic, these are two quite different roles on a farm and Mr Le
Boutillier did not expect Mr Waters to be attracted to it or indeed ever apply for it. Mr
Le Boutillier told the Tribunal that he had mentioned the tractor driver position with
Mr Waters, on JACS advice, in order to cover the redeployment angle of the
redundancy process. Mr Waters was also quite clear that he was not a manager and
that the management of the Farm remained firmly with Mr & Mrs Le Boutillier. At
their meeting the parties discussed Mr Waters‟ house on the Farm and Mr Le Boutillier
said Mr Waters could stay there at a reduced rent; Mr Waters said he could not afford
this and an arrangement was made that Mr Waters would leave immediately (which he
149
was happy to do in the circumstances) and be paid to the end of November 2006
together with all accrued holiday pay.
13. Evidence was heard from both parties that the position of Farm Manager/Tractor driver
was created by Mr Le Boutillier in order to attract an experienced tractor driver from
another farm as the Farm needed to cut down on its tractor contractor costs. It was
acknowledged that this was not in fact a management position. The Tribunal was
informed that this post remains unfulfilled to date.
14. Evidence was also heard that the Farm advertised for „Milking Staff‟ in the JEP on 14th
December 2006 over 4 nights. Mr Le Boutillier said this was to cover for staff no longer
available to the Farm and that the skills to milk a cow are not comparable to those of a
herdsman: any member of staff can be taught to milk a cow in a very short time. Mr
Waters acknowledged that this was true but pointed out that a herdsman, whilst
milking cows, is also checking on their health and well-being, which milking staff
cannot do. This was agreed by Mr le Boutillier who said he now performed those
functions himself.
15. Evidence was heard from Mr Waters that he and Mrs Le Boutillier had fallen out over
the high percentage of calves kept by the Farm. Mr Waters said that these calves are
very costly to maintain as acknowledged by Mr Jackson‟s letter. Mr Waters told the
Tribunal that Mr le Boutillier mentioned these arguments when he visited him on 4th
October 2006. However Mr Waters acknowledged that Mr & Mrs Le Boutillier
managed the Farm alone.
16. On leaving the Farm and following further extensive treatment to his right hand Mr
Waters lodged a complaint of unfair dismissal by the Respondent with the Tribunal.
Mr Waters also complained that he had not received a written statement of terms in
accordance with article 3 of the Employment (Jersey) Law 2003, („the Law‟) or a
statement of his pay for the duration of his employment as required by article 51 of the
Law.
17. The Tribunal has looked at these complaints in turn.
Unfair Dismissal
The Law
18. Article 64 of the Employment (Jersey) Law 2003 („the Law‟) requires an employer to
show the reason for the dismissal when fairness or unfairness of that dismissal is
being considered. Some reasons are considered potentially fair reasons and these are
set out in Article 64 (2). Redundancy is a potentially fair reason for dismissal. In any
event an employer is required by virtue of article 64 (4) to have acted reasonably in
treating such reason as sufficient reason for dismissal and to have acted in accordance
with equity and the substantial merits of the case.
19. Articles 64 (1) (2) and (4) are set out as follows:
64 General
(1) In determining for the purposes of this Part whether the dismissal of an employee is
fair or unfair, it shall be for the employer to show –
(a) the reason (or, if more than one, the principal reason) for the dismissal; and
(b) that it is either a reason falling within paragraph (2) or some other substantial
reason of a kind such as to justify the dismissal of an employee holding the position
which the employee held.
(2) A reason shall fall within this paragraph if it –
(a) relates to the capability or qualifications of the employee for performing work of
the kind which he was employed by the employer to do;
(b) relates to the conduct of the employee;
150
(c) is that the employee was redundant; or
(d) is that the employee could not continue to work in the position which he held
without contravention, (either on his part or on that of his employer) of a duty or
restriction imposed by or under an enactment.
(3) …….
(4) Where the employer has fulfilled the requirements of paragraph (1), the
determination of the question whether the dismissal is fair or unfair (having regard to
the reason shown by the employer) shall –
(a) depend on whether in the circumstances (including the size and administrative
resources of the employer‟s undertaking) the employer acted reasonably or unreasonably
in treating it as a sufficient reason for dismissing the employee; and
(b) be determined in accordance with equity and the substantial merits of the case.
(5) …..
20. Article 64 (5) refers to situations which are considered by the Law to be automatically
unfair dismissals, and they do not apply in this case.
21. Article 2 (1) of the Law defines Redundancy as follows:
Redundancy
(1) For the purposes of this Law an employee who is dismissed shall be taken to be
dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to –
(a) the fact that his employer has ceased or intends to cease –
(i) to carry on the business for the purposes of which the employee was employed by
him, or
(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business –
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the
employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.
22. The Tribunal heard evidence from Mr Le Boutillier as set out in paragraph 2 above that
the Farm was not profitable and having taken advice from Mr Jackson, the States of
Jersey advisor to the dairy industry, one of the options was to forgo the services of a
herdsman. Mr Waters felt strongly that Mr Le Boutillier should consider culling a large
percentage of his calves to save costs but this was a management decision that Mr Le
Boutillier did not wish to take. In the absence of clearly erroneous or vexatious
decisions it is not the Tribunal‟s function to comment upon such considerations.
23. By applying Article 2(1) of the Law to Mr Le Boutillier‟s decision it is clear that Mr
Water‟s dismissal, „is …. attributable to the fact that the requirements of [the Farm] for
employees to carry out the work of a particular kind [here, herdsman] have ceased.‟
Accordingly the Tribunal finds that Mr Waters was made redundant.
24. As stated in paragraph 18 above, redundancy is a potentially fair reason for dismissal.
Accordingly the Tribunal has considered whether the Respondent acted reasonably or
not in treating redundancy as being a sufficient reason for dismissal and by looking at
the equity and substantial merits of the case.
25. The Tribunal are going to follow the views of the Deputy Bailiff in Voisin v Brown
[2007] JRC47 para 28, where he states as follows;
„Where … an employer declares an employee redundant and fails to warn or consult him
in accordance with the procedural requirements summarised by Lord Bridge (in Polkey v
A.E. Dayton Services Ltd [1988] AC 344] and adopted in [Goguelin v Stuart Banks
(Carpenters & Builders) Limited 2006 JET], it is not open to the Tribunal to hold without
151
more ado that, as a result of such failure, the dismissal was unfair. Nor is it permissible
for the members of the Tribunal to ask themselves whether they consider that the failure
to warn or consult in the particular circumstances was wrong and to conclude therefore
that the dismissal was unfair. To hold such a dismissal to be unfair on such a basis is to
fail to adopt the band of reasonableness test and would be an error of law… The
Tribunal must therefore concentrate not on whether the employer‟s decision or the
procedure adopted by him was wrong but on whether it was so wrong as to fall outside
the band of reasonable actions on the part of a reasonable employer.‟
26. To summarise, this Tribunal has considered each of these aspects in looking at the
facts of this case –
(i) The extent of consultation with the employees
(ii) The amount of warning of redundancy given
(iii) The establishment of fair criteria for selection of employees for redundancy
(iv) The exploration of alternatives to redundancy
(v) Bearing in mind the size and administrative resources of the Respondent‟s
business, whether the actions of the Respondent were those of a reasonable
employer acting within the band of reasonable responses to the situation
presented to it.
The Tribunal has considered each of these points in turn in the context of this case.
The Tribunal‟s Decision.
The issues of warning and consultation.
27. The Tribunal is satisfied that at the meeting held on 4th October 2006, Mr Le Boutillier
did warn Mr Waters‟ of the likely redundancy of his position as Herdsman. This
warning was not perfect by any means, not least by its timing; being only a few days
after Mr Waters came out of hospital following a traumatic and by all accounts
extremely painful series of operations. However the unfortunate confusion in Mr
Waters‟ mind as to whether he was sacked or being made redundant, does indicate that
Mr Le Boutillier did get his message across: that the position of herdsman at the Farm
was in jeopardy.
28. The purpose of consultation in a redundancy process is two fold. First it allows an
employee a fair opportunity to explain any factors which lead to his selection for
dismissal and of which the employer may not be aware. The Tribunal heard evidence
that there had been some discussion by the parties along these lines: Mr Water‟s made
his views about the cost of the preservation of such large numbers of calves very clear
and he had also voiced his opinion about the lack of „herdsman‟ skills held by RG.
Both views were listened to by Mr Le Boutillier, but he was not swayed from his plan.
The second point of consultation is to give an employee an opportunity to consider
other vacancies within the operation. The Tribunal heard evidence about the „Farm
Manager/Tractor Driver‟ position but it was patently clear and accepted by the parties
that this was not suitable for Mr Waters in any way, or indeed ever meant for him.
However there does not appear to have been a discussion about whether Mr Water‟s
would have been willing to accept another job on the Farm as performed by one of the
Polish workers. On questioning by the Tribunal, Mr Le Boutillier said that such
position would only have paid minimum wage and would have meant Mr Waters
moving into a bed-sit, as opposed to his two bed roomed cottage, and as Mr Waters
was a family man he did not think he would have been interested. Mr Waters
countered that the accommodation at the Farm was a big issue for him and whilst he
would have been insulted to have been offered RG‟s job, he might have accepted it if
he could have kept his house. Mr Le Boutillier pointed out that the cottage has a
financial value to the Respondent, indeed it was now being let commercially, and
furthermore RG was one of the, „best employee‟s they‟d ever had‟ and he was loathe to
let her go. Also RG had started a year before Mr Waters. The Tribunal has concluded
152
that keeping Mr Waters in the cottage, even at minimum wage, would have been more
expensive to the Respondent than continuing to employ RG on her existing terms
notwithstanding any potential claim by RG under the Law for unfair dismissal, and
this does not seem unreasonable. However it is also clear to the Tribunal that the
parties never had a full and frank discussion of the various ways in which Mr Water‟s
redundancy from employment at the Farm could have been avoided. As the Tribunal
has said before, these conversations or periods of consultation do not have to have
successful outcomes, but they must not be shied away from: redundancy is a brutal fact
and hard conversations must take place. The Tribunal is concerned by the lack of
consultation between Mr Le Boutillier and Mr Waters.
The Selection Criteria
29. Mr Le Boutillier claimed that Mr Waters as „Herdsman‟ was in a „pool of one‟ and
accordingly no criteria could be applied to his selection for redundancy against other
members of staff at the Farm. The Tribunal has heard this „pool of one‟ reference made
before. It is a common assumption in small businesses that because no other member
of staff has the same title as the particular employee, that they must exist as occupying
a unique position in the business. This is an incorrect assumption. The proper starting
point is to look behind the employee‟s title and identify that person‟s skills,
experience and contribution to the business. Then the employer must look at the skills,
experience and contribution of other employees within the business with whom such
potentially redundant employee can fairly be compared using a sound commonsense
approach. If no comparison can reasonably be made only then can it be said that such
employee exists in a pool of one and occupies a singular, unique, position in the
business.
30. As stated above it was made clear to the Tribunal that Mr Waters was an „animal‟
person and had no skills or interest in tractor driving or construction work and this can
fairly be said to have been known to each party throughout their relationship. It can
also be said that Mr Water‟s skills and experience as Herdsman set him apart from the
other workers on the Farm and this was reflected in his salary and standard of
accommodation. However Mr Water‟s skills were transferable to RG‟s role although
she was far junior to him. So a comparison of skills could have been made here. As
stated in paragraph 28 above, it appears that Mr Le Boutillier did make this
comparison, perhaps unwittingly, when he concluded that Mr Waters‟ would not be
interested in RG‟s role and salary package due to his experience and personal
circumstances. Whilst this comparison was not aired between the parties, which was
wrong – the Tribunal will emphasise again that these difficult conversations must be
held – some sort of sifting or selection does seem to have occurred in this case by Mr
Le Boutillier.
The obligation to consider alternatives
31. The Tribunal always considers it important that alternatives to redundancy are fully
discussed and considered by the parties involved. As stated in paragraphs 28 and 30
above, these are difficult discussions but they must take place when someone is about
to lose their job. The Tribunal expects an employer to take the lead in these
discussions while being receptive to the suggestions from the employee.
32. In this case there appears to have been no discussion about alternatives to Mr Water‟s
redundancy. Mr Le Boutillier had clearly made up his mind that the role of Herdsman
had to go by the end of November 2006 and did not consider that RG‟s role would be
attractive to Mr Waters. It was clear also that Mr Le Boutillier did not want to lose RG‟s
services on his farm. On the other hand it was also clear from the evidence heard that
by their second meeting on the 16th October 2006, Mr Waters had made up his mind to
leave the Farm and start afresh. The Tribunal concludes that there was not the
atmosphere or set of circumstances in which this type of constructive discussion by the
153
parties could have arisen. Perhaps if Mr Le Boutillier had approached the subject of Mr
Water‟s redundancy more sensitively following his accident and return home from
hospital a more constructive relationship could have been allowed to develop. As it
was, Mr Waters had lost faith in Mr Le Boutillier who in turn made no overt effort to
retain Mr Waters‟s skills on the Farm.
The reasonable response taking into account the size and resources of the business of the
Farm.
33. The Tribunal has asked itself was the Respondent‟s decision to make Mr Waters
redundant, the reasonable response of a reasonable employer. The Respondent is
personified by Mr & Mrs Le Boutillier and it is their actions which determine the
reasonable response of the employer in this case.
34. Mr Le Boutillier informed the Tribunal that he had taken advice from the States of
Jersey, Dairy Husbandry Advisor on the profitable management of the Farm. The
Tribunal saw evidence that one aspect of this advice was to dispense with the cost of a
Herdsman. Mr Le Boutillier informed the Tribunal that he had taken regular advice
from JACS on the proper process of Mr Waters‟ redundancy. These are the actions of a
careful, prudent manager. Clearly no decisions were made rashly. The Tribunal accepts
the evidence of Mr Le Boutillier that he could not afford to keep a herdsman and that
the decision to keep young calves in the herd was for him alone. From the evidence
heard the Tribunal is satisfied that the Farm had a small, pared down staff and each
member had a particular role to perform. The Tribunal draws no conclusions from Mr
Le Boutillier‟s evidence that RG was a cheap, efficient employee on the Farm but
accepts that Mr Le Boutillier clearly recognised that RG had been continuously
employed for longer than Mr Waters and that her skills could be used to assist him
when he undertook a more active role with the cattle on the Farm. It is clear from the
evidence heard that Mr Le Boutillier has taken on the vast majority of the Herdsman‟s
duties himself and the RG has taken on specific duties only sometimes supported in
the most simple work by another farm worker. The Tribunal is satisfied that the role of
„Herdsman‟ at the Farm no longer exists. The Tribunal is critical of the failure of Mr Le
Boutillier to consult with Mr Waters about the redundancy and his failure to explore
alternatives to redundancy with Mr Waters. However the Tribunal can see that there
was no reasonable prospect of alternative employment for Mr Waters on the Farm and
it was clear from Mr Le Boutillier‟s evidence that he had weighed up the alternatives,
even if he did not express his thoughts to Mr Waters and encourage a discussion of the
situation. The Tribunal is satisfied that for business reasons the Herdsman position
was going to be made redundant at the end of November 2006 regardless of Mr Water‟s
accident and that his subsequent disability had no bearing on Mr Le Boutillier‟s
decision. The unfortunate timing of Mr Waters‟ redundancy (being so close to his
accident) meant that it was almost inevitable that a spirit of cooperation in this matter
would not exist for Mr Waters. However the Tribunal recognises the fact that the
Respondent employed a very small staff and that as a business it was operated on
unsophisticated lines: more time was spent in operating the Farm efficiently than in
creating administrative resources and this is not unexpected in the circumstances.
Conclusion
35. The process of Mr Waters‟ redundancy was not perfect which basically stemmed from
a lack of communication between Mr Le Boutillier towards Mr Waters. However Mr Le
Boutillier‟s actions were necessitated by his desire to make the Farm profitable; his
actions were not motivated by spiteful or vexatious reasons. The Tribunal recognises
that the Farm is a small family business trying to stay afloat in the difficult
circumstances of the dairy industry in Jersey. It is clear to the Tribunal that there
simply was no alternative position for Mr Waters at the Farm and Mr Le Boutillier
endeavoured to act fairly. This is a difficult decision, not least because of Mr Waters‟
injuries and subsequent suffering, but in all the circumstances of this case the
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Tribunal does not find that Mr Le Boutillier acted outside the band of reasonable
responses by a reasonable employer to the need to make Mr Waters‟ position
redundant or in the subsequent process. Accordingly the Tribunal finds that Mr
Waters was not unfairly dismissed.
Failure to provide a written statement of terms of employment
36. Mr Le Boutillier admitted to the Tribunal that he had failed to provide a written
statement of terms of employment (in other words, a contract of employment) for Mr
Waters in accordance with article 3 of the Law. Article 9 of the Law states that this is an
offence punishable by a fine not exceeding £5,000 (being level 4 on the Standard Scale)
in accordance with the Criminal Justice (Standard Scale of Fines) (Jersey ) Law 1993.
37. The Tribunal hereby fines the Respondent the sum of £250.00 for failing to comply
with Article 3 of the Law.
Failure to provide a Pay Statement
38. The Respondent admitted not providing a written itemised pay statement at all to Mr
Waters throughout his employment. Article 51 of the Law states that an employee has
the right to receive a written itemised pay statement at or before the time his wages are
paid to him.
39. By Article 55 of the Law, a breach of Article 51 is an offence punishable by a fine not
exceeding £5,000 (being level 4 on the Standard Scale) in accordance with the Criminal
Justice (Standard Scale of Fines) (Jersey ) Law 1993.
40. The Tribunal hereby fines the Respondent the sum of £250.00 for failing to comply
with Article 51 of the Law.
Schedule of Fines
1. Failure to provide a written statement (Article 3 of the Law) £250.00
2. Failure to provide an itemised pay statement (Article 51 of the Law) £250.00
Total Fines £500.00
Tribunal Note:
These fines are levied in respect of offences that occurred during 2006.
Commercially sensitive information has been deleted.
155
Jersey Employment Tribunal
Case Number: 1112-215/06
Applicant: Miss Victoria Mackenzie
Respondent: Columbia Estates (C.I.) Ltd
Hearing on 8th October 2007
Before: Mr David le Quesne, Chairman
Mr Peter Woodward and Mr William McPhee,
Panel Members
Representation:
For Applicant: Mrs Debbie Moran
For Respondent: Mr David Kennedy, director
The Facts
1. The complainant, Miss Mackenzie, was employed by the respondent, Columbia
Estates (C.I.) Ltd from 10th October 2005 until 13th October 2006. Her job was, according to her
contract of employment, office junior. It is clear that she performed her job to the satisfaction
of her employer, for Christine Fraser, the office manager, told us that she came to entrust her
with matters such as receipt of rental payments, which often were in cash, and with the
banking.
2 On 13th October 2006 Miss Mackenzie‟s employment came to an end when she signed a
letter resigning with immediate effect. She signed this letter knowing that her employer
accused her of dishonesty by taking for herself cash rental payments received by her on behalf
her employer, and knowing that her employer was going to dismiss her immediately for gross
misconduct in taking that money.
Miss Mackenzie complains that she was unfairly dismissed. In fact, her claim is that she was
constructively dismissed, because she says that she could not continue to work for Columbia
given the accusation which wrongly had been made against her. Mr Kennedy on behalf of
Columbia says that he was entitled to dismiss her on behalf of Columbia because of her
dishonesty.
3 The question for the Tribunal is whether Columbia acted reasonably. In considering
that question, we have been careful to avoid the question of whether or not Miss Mackenzie
did act dishonestly; we could not possibly determine the answer to that question, and nothing
in this judgment should be taken as suggesting otherwise. The police enquiries have,
apparently, ended with no charges against anybody, so Miss Mackenzie, just like the other
employees of Columbia, is innocent.
4 Columbia‟s case is that it became aware from its office in the UK where the finances
were handled that there were discrepancies between the amounts of money received at the
office in Jersey as rents, apparently by Miss Mackenzie, and the amounts actually being paid
into the company‟s account in Jersey.
The office in Jersey was small, consisting of Mr Kennedy, Miss Fraser who was office
manager, Miss Mackenzie who worked under Miss Fraser, and Anna Seymour, who was the
receptionist.
It was clear to Mr Kennedy that the money was being taken by one of his three members of
staff, so on Thursday 12th October 2006, he interviewed all of them. As a result of those
interviews, he formed the opinion that Miss Mackenzie was to blame.
Miss Fraser told us that the circumstances drove her to the same conclusion.
5 Miss Mackenzie gave her evidence clearly, and she squarely denied that she had taken
any money. From what she and the Columbia witnesses told us, it seems that the system for
156
receiving and recording the receipt of cash could be abused by anybody in the office who was
dishonest. She said that discrepancies could arise in several ways, such as cash from rental
payments being used for petty cash in the office, or it being put aside in a drawer or file
because a key-holder for the safe was not available when the money was received.
6 On Friday 13th October 2006, Mr Kennedy continued his enquiries which had started
earlier that week. He called the London office, and was told that further discrepancies had
been found, making the matter more serious.
Later that day, Mr Kennedy had a meeting with Miss Mackenzie in the boardroom; Miss
Fraser was in attendance. By that stage, or at least by the end of the interview, Mr Kennedy
was sure that it was Miss Mackenzie who had taken the money. He told us, and this was
supported by Miss Fraser, that he showed to Miss Mackenzie documents which drove him to
the conclusion that she must have taken the money. We accept that he did take Miss
Mackenzie through these documents. Mr Kennedy asked Miss Mackenzie if she had any
explanation, and she said that she had not taken the money.
7 Mr Kennedy asked Miss Fraser to contact JACS to determine the correct procedure for
dismissing an employee for gross misconduct, and Miss Fraser told us that the advice she was
given was that the employee should be warned that there would be a formal disciplinary
hearing which she should attend, and she could have with her a friend or adviser.
Miss Fraser said that she then explained this to Miss Mackenzie, whose response was that she
wanted to resign immediately. Miss Fraser then again telephoned JACS, who advised her that
Miss Mackenzie could resign if she wanted, and that it would be appropriate for Miss Fraser
to provide her with a resignation letter.
Miss Fraser duly prepared two copies of a resignation letter, which Miss Mackenzie signed.
8 During the course of the meeting on the Friday, after Miss Mackenzie had denied
taking the money, Mr Kennedy said that he would have to call the police. This was done, but
they did not arrive at the office for a long time. They arrived after Miss Mackenzie had signed
the resignation letters and was leaving the office; she returned to the boardroom where she
and Mr Kennedy and the police had a discussion. By this time, Miss Mackenzie had been in
the boardroom for hours and was, not surprisingly, distressed and tired; she told the police
that she could not carry on that day, but would make herself available when they wanted for
an interview.
The police did interview Miss Mackenzie, and she told us that she made available to them her
banking and credit card details. Mr Kennedy and Miss Fraser told us that they also were
interviewed. The police enquiry came to an end with nobody being charged.
9 This short account of the facts leaves out many points of evidence which we heard
relating to the trail that cash took when received in the office, the variations between what
should have happened to such cash and what (according to Miss Mackenzie) actually
happened, the enquiries undertaken by Mr Kennedy, and the details of what was said and
done on Friday 13th October. We have, however, carefully considered all the evidence.
Decision
10 We have concluded that Miss Mackenzie‟s claim fails; she was not unfairly dismissed.
As stated earlier in this judgment, the question for the Tribunal is whether we are satisfied, on
the balance of probabilities, that Columbia‟s action in informing Miss Mackenzie that it
believed that she had grossly misconducted herself by taking money belonging to it, was
reasonable. If it was reasonable, Miss Mackenzie cannot have been justified in her claim that
she was, in effect, forced to resign by the accusation. If it was not reasonable, her claim that
she was unfairly constructively dismissed well may have succeeded.
We find that Columbia‟s conduct was reasonable because we find that Mr Kennedy took all
reasonable steps to establish whether or not Miss Mackenzie had taken the money. Mr
Kennedy told us “I had done a thorough investigation and I honestly believed the money had
been taken by Victoria Mackenzie.” The evidence we heard from Mr Kennedy and Miss
157
Fraser, both of whom were credible witnesses, satisfied us that Mr Kennedy had indeed
investigated the matter thoroughly and he did indeed honestly hold that belief.
We understood from both Miss Mackenzie and Miss Fraser that they became quite close to
each other; Miss Fraser said that she was something of a surrogate mother to Miss Mackenzie.
Yet, Miss Fraser clearly was satisfied that all reasonable enquiries had been made, and that the
result of those enquiries justified dismissing Miss Mackenzie. We think that she would have
made her feelings known to Mr Kennedy had she thought that he was treating Miss
Mackenzie unfairly.
In the circumstances, it was reasonable for Columbia to take steps to dismiss the Miss
Mackenzie for gross misconduct. The fact that Miss Mackenzie then was allowed to resign
with immediate effect does not have any bearing on the issue. This is not by any means to say
that Mr Kennedy‟s belief was correct; that is not a matter for us.
158
Jersey Employment Tribunal
Case Number: 2003-069/07
Applicant: Mr Melvin Cooper
Respondent: Alexander Burnett Plumbing & Heating Ltd
Case Summary: Existence of written statement of terms, contractual sums due.
Hearing on 11th October 2007
Before: Mrs Nicola Santos-Costa, Deputy Chairman
Mrs Kelly Flageul and Mr Tim Langlois, Panel Members.
Representation:
For Applicant: Mr Cooper represented himself
For Respondent: Mr Edward Gibb, director
Witnesses:
For Applicant: Miss Emma Hickey
For Respondent: Mr Edmund Evans, Administrative Manager
The Facts
1. Mr Cooper was employed by the Respondent on the 29th November 2006 as a plumber.
On the 13th March 2007 Mr Cooper was informed by Mr Barry Mackenna that his rate
of pay was going to be reduced from £12.50 per hour to £10.00 per hour to reflect what
his employers considered to be his poor performance as a plumber to date. Mr Cooper
did not wish to work for this reduced wage and handed in his notice to the
Respondent on the 14th March 2007.
2. Mr Cooper filed a complaint with the Jersey Employment Tribunal („the Tribunal‟)
concerning the following matters:
a) That he was due to be paid for 8 hours worked on the 15th March 2007,
b) That he was due to be paid for two hours worked on the 29th December
2006,
c) That he was due to be paid for one hour‟s work at The Bond public house,
on an unspecified date,
d) That he was due to be reimbursed the cost of fuel bought for work
purposes,
e) That he should receive a week‟s notice pay, and
f) That he had not received a contract of employment.
3. The Respondent‟s case was that it had supplied Mr Cooper with a Contract of
Employment („the Contract‟) on the 15th December 2006, but that Mr Cooper had not
returned it to them. The importance of this fact was that the Contract contained a
clause requiring an employee who had given less than 26 weeks service to serve one
week‟s notice of resignation. In the event that an employee did not serve out a period
of resignation the Contract entitled the Respondent, „to deduct from any monies held,
[a sum] for any notice not worked, by way of compensation‟. The Respondent
maintained that as Mr Cooper had left its employment without explanation or notice,
he owed them a week‟s wages and it was entitled to deduct such sum from any sums
due to him being in particular items (a) to (e) in paragraph 2 above and in this case this
meant that in fact Mr Cooper owed the Respondent the sum of £15.00.
4. Mr Cooper gave evidence to the Tribunal that he had never received a Contract. Mr
Cooper produced copies from his work diary where he had noted the dates on which
he had asked Mr Gibb for his Contract. Mr Cooper said that Mr Gibb always replied
that, „he‟d sort it out‟, or something like that. The extracts from Mr Cooper‟s diary
159
indicate that he asked for his Contract on the 7th December 2006, 15th December 2006,
19th December 2006, 26th January 2007 and the 12th February 2007. Mr Cooper‟s daughter
in her evidence said that she had consistently advised her father to get a contract of
employment and to contact JACS about his position, and that as far as she was aware,
he had never received a contract of employment. Mr Cooper pointed out to the
Tribunal that it is in his nature to deal with paperwork as it comes in. Accordingly on
receipt of a Contract, he would have signed it and returned it to the Respondent, as
instructed, and without delay. The fact that he did not do this means that no contract
existed.
5. Mr Gibb, on behalf of the Respondent, said that it was the Respondent‟s practice to
produce contracts of employment and that he is aware of his responsibilities under the
Employment (Jersey) Law 2003 („the Law‟)
6. Mr Evans, giving evidence on behalf of the Respondent, confirmed that it was his
responsibility as Administrative Manager for the Respondent to make up the wages
for the Respondent‟s employees and to issue contracts of employment. Mr Evans, said
in evidence to the Tribunal, that he remembered preparing Mr Cooper‟s Contract
because they both started work about the same time. Mr Evans explained that he filled
in a pro-forma contract of employment by hand with information about an employee
provided to him by Mr Gibb. This contract would be produced in duplicate, signed by
a director of the Respondent (in this case Mr Gibb), and then sent to an employee in a
white A5 envelope with his wages with instructions to sign and return one copy to the
office. Mr Evans told the Tribunal that he was „positive‟ that he had sent Mr Cooper‟s
Contract to The Bond public house with his wages before Christmas 2006. Mr Evans
further informed the Tribunal that in January 2007 he reminded Mr Cooper to return
the copy to him, and Mr Cooper said he would attend to it.
7. Mr Gibb gave evidence to the Tribunal that he remembered taking Mr Cooper‟s
Contract to The Bond pub with his (and others) wages, because he remembered the
white envelope being amongst the wage packets, and this was on the 15th December
2006. Mr Gibb also informed the Tribunal that it was not Mr Evans‟ role to chase up
the return of the contracts but that of individual line managers, in this case Mr
MacKenna.
8. Mr Gibb produced a written statement from Mr MacKenna, in which Mr MacKenna
stated that, „over the months I worked with Mr Cooper [I had] about 6 informal
conversations with [him] about returning the contract he had been given, and on each
occasion was assured he would do so in due course. At no time was it ever intimated to
me, by Mr Cooper that he had not received a Contract of Employment or that he had
issues with the one we discussed on these occasions‟. Mr MacKenna was not present as
a witness so the Tribunal were not able to test the evidence presented in this statement.
9. Mr Cooper did not accept that a written contract was provided to him. However Mr
Cooper told the Tribunal that when he was first interviewed for the job in November
2006, he and Mr Burnett discussed the rate of his pay, his role, his hours of work per
week and his start date. Mr Cooper said that there was no discussion about his holiday
entitlement, overtime, reimbursement of expenses or notice arrangements.
10. In respect of the claims made by Mr Cooper for unpaid time, Mr Gibbs informed the
Tribunal that the 2 hours were in relation to a job which took Mr Cooper 3 hours to
complete and which in Mr Gibbs‟ opinion, should have taken just 1 hour. Mr Gibb
informed Mr Cooper immediately that he would not be paying Mr Cooper for the
additional 2 hours and had thought that Mr Cooper had accepted the position. In
relation to the 1 hour claim, Mr Gibb explained that Mr Cooper had performed sub-
standard work on a job and in exasperation Mr Gibb had sent him home an hour early.
Again Mr Gibb was under the impression that Mr Cooper accepted the decision not to
pay him.
160
11. The Tribunal have looked at each point of claim by Mr Cooper. However the starting
point is the existence of the Contract and thereby the right of the Respondent to receive
notice of termination of employment.
Decision
The existence of a Contract of Employment
12. The Tribunal finds that a verbal contract of employment existed between Mr Cooper
and the Respondent which arose out of the conversation between Mr Cooper and Mr
Burnett described in paragraph 9 above prior to Mr Cooper starting work for the
Respondent.
13. However a verbal contract of employment is not sufficient to satisfy article 3 of the
Law which requires a written statement of the terms of employment to be provided to
an employee within 4 weeks of an employee starting work. It is the existence of this
document that is in contention between the parties („the Contract‟)
14. Mr Cooper was adamant that he had not received a Contract. The Respondent was
equally certain in its evidence that it had supplied a Contract to Mr Cooper in
accordance with the Law. In situations like this, the Tribunal must make a decision
based on the „balance of probabilities‟ that is to say it must decide looking at the
evidence available, whether it was likely that a Contract was produced or not.
15. The Tribunal have found this decision extremely difficult: both parties‟ evidence was
conflicting and even following direct questioning from the Tribunal neither party
changed their evidence. However, having considered the situation as a whole the
Tribunal has decided that on the balance of probabilities, the Contract was issued by
the Respondent. It has based this decision on the evidence given to the Tribunal by
each of Mr Gibb and Mr Evans regarding the issue of a contract of employment and
more particularly described in paragraph 6 above. This very specific evidence
indicated to the Tribunal that the Respondent had a system and a procedure regarding
the issue of contracts of employment to employees at the time of Mr Cooper‟s
employment. Mr Gibb gave evidence that he had given a Contract to Mr Cooper.
Furthermore Mr MacKenna written statement of evidence informed the Tribunal that
he had spoken to Mr Cooper six times about the return of the Contract to the
Respondent.
16. For the reasons stated in paragraph 15 above the Tribunal believe the Contract was
issued and given to Mr Cooper. This means that the Respondent was entitled to receive
1 week‟s notice of resignation from Mr Cooper or deduct a week‟s pay by way of
compensation in accordance with the terms of the Contract. If Mr Cooper had worked
his period of notice he would have worked at the new rate of £10.00 per hour. By the
terms of the Contract Mr Cooper was obliged to work a minimum of 40 a week. Taking
this figure the Tribunal hereby awards to the Respondent the sum of £10.00 x 40 hours
= £400.00.
The other areas of claim by Mr Cooper
17. The Tribunal finds that Mr Cooper worked for the Respondent on 15th March 2007 at
the newly agreed rate of £10.00 per hour. The Tribunal hereby awards to Mr Cooper the
sum of £10.00 per hour x 8 hours = £80
18. The Tribunal notes that Mr Gibb agreed that Mr Cooper had been underpaid by £2.50
per hour in the last week he worked for the Respondent because the new rate of £10.00
per hour had been incorrectly applied. Accordingly the Tribunal hereby awards to Mr
Cooper the sum of £2.50 x 38 hours = £95.00
161
19. The Tribunal notes that Mr Gibb agreed that 3 days holiday pay was due to Mr Cooper
in respect of the time he had worked for the Respondent which had not been paid to
him. Accordingly the Tribunal hereby awards to Mr Cooper the sum of 8 hours x £12.50
per hour x 3 days = £300
20. The Tribunal notes that Mr Gibb agreed that Mr Cooper should be reimbursed for the
£10.00 he spent on petrol for the Respondent‟s van whilst at work. Accordingly the
Tribunal hereby awards to Mr Cooper the sum of £10.00
21. The Tribunal notes that on the 29th December 2006, Mr Gibb refused to pay 2 hours of
3 hours time logged by Mr Cooper in trying to relight a boiler because Mr Gibb
considered that Mr Cooper could have completed the task in one hour. The Tribunal
considers that Mr Cooper worked these hours in the course of his duties and any issues
regarding his performance should have been dealt with separately by Mr Gibb at a
disciplinary meeting. The Tribunal hereby awards to Mr Cooper the sum of 2 hours x
£12.50 per hour = £25.00
22. The Tribunal notes that in respect of the claim for 1 hours work, Mr Cooper finished
work early on Mr Gibb‟s instructions and he did not log this time on his time sheet.
The Tribunal considers that Mr Cooper‟s remuneration was based on hourly working
and this is reflected by the fact that he would be paid for a different number of hours
worked each week. Mr Cooper did not work for the Respondent for this hour and the
Tribunal had decided not to make an award to Mr Cooper in this respect. This point
has been decided by a majority decision of the Tribunal. The Deputy Chairman
dissented on the basis that Mr Cooper was willing to work for a further hour but did
not because of Mr Gibb‟s instructions. Evidence was heard that there was work for Mr
Cooper to do and it was within Mr Gibb‟s gift to send him home early. Accordingly,
the Deputy Chairman believes that it is unfair for Mr Cooper to be penalised through a
loss of wages in this situation.
23. For the sake of clarity the Tribunal had decided to make a schedule of the Awards
made to each of Mr Cooper and the Respondent in this matter (see attached). The
parties will note that the result of these Awards is that the sum of £110.00 remains to be
paid to Mr Cooper by the Respondent and the Tribunal HEREBY ORDERS such sum
be paid to Mr Cooper without delay.
SCHEDULE OF AWARDS
A 1. Award to the Respondent in respect of compensation due for notice not £400.00
given by the Applicant
Total to Respondent £400.00
B 1.Award to the Applicant in respect of 8 hours worked on 15/03/07 £80.00
2. Award to the Applicant in respect of 38 hours underpaid £95.00
3. Award to the Applicant in respect of 3 days holiday pay due £300.00
4. Award to the Applicant in respect of reimbursement of petrol costs £10.00
5. Award to the Applicant in respect of 2 hours worked on 29/12/06 £25.00
Total to Applicant £510.00
C Balance of Award ORDERED to be paid to the Applicant following a set off
of „A‟ against ‟B‟ £110.00
Respondent to pay the Applicant the sum of £110.00
162
Jersey Employment Tribunal
Case Number: 2901-025/07
Applicant: Margaret Elizabeth McBride
Respondent: Randalls Vautier Limited
Case Summary: Constructive Unfair Dismissal
Hearing on 31 October 2007
Before: Mr David le Quesne, Chairman
Mr Stewart Mourant and Mr Paddy Kirwan, Panel members
Representation:
For Applicant: Mrs McBride represented herself
For Respondent: Randalls Vautier was represented by Mr Ian Randall
1 The Applicant started her employment with the Respondent as a manager of a public
house in June 2003; she became manager of the Temple Bars in St Helier, and she lived on the
premises with her husband and two young children.
In September 2006, Mrs McBride and her family moved to Le Relais des Mielles („Le
Relais‟), where she became the Respondent‟s manager. This was a very different sort of
establishment, being out of town in the far west of the island.
The circumstances of Mrs McBride‟s move to Le Relais were unfortunate, in that the
Respondent declared her job at Temple Bars redundant because it was going to become a
tenanted public house, but, we were told, and there appears to be some truth in it, proper and
fair redundancy procedures were not followed. When this was pointed out to the Respondent,
it offered other jobs to Mrs McBride, and she took the job at Le Relais.
2 On 31st January 2007, Mr McBride resigned. She says that she was constructively
dismissed, and that is the complaint which was before us. The Respondent („Randalls‟) denies
constructive dismissal.
3 Mrs McBride relied upon two matters which she said were contrary to the terms of her
employment and/or otherwise were such as to destroy the relationship between her and
Randalls. The first was the excessive hours which she had to work at Le Relais; the second was
an accusation by Randalls that she had been dishonest.
Excessive hours
4 The contracts of employment which were produced to us did not state the working
hours, but stated “….managers are expected to work as and when required…… No overtime
rates apply.” Mrs McBride told us that the normal working hours should have been around 45
hours per week, but that at Le Relais she had to work around 69 hours per week. Randalls
accepted that the working week would have been more than 45 hours, but did not accept that
Mrs McBride should have had to work, or indeed did work, for as much as 69 hours per week.
We accept that Mrs McBride did find it necessary to work for more than 45 hours per
week, but we make no finding as to how many hours she worked.
5 As Mrs McBride explained it to us, the problem was that Le Relais was as remote as
one can be in Jersey, with a limited number of clients. That we accept. She also said that it was
not in practice possible to increase the clientele, due to the drink driving law, the reluctance of
the police to allow entertainment on the premises and the wish of the clientele, such as it was,
that there should not be entertainment on the premises.
Randalls required Le Relais to produce a certain profit. Mrs McBride said that she
could not produce the required figure if she employed staff, because she could not attract
more custom to offset the additional cost; she therefore had to run the business on her own,
which is why she spent so much time working.
163
6 Randalls said that the previous manager had employed staff, and had increased
turnover by encouraging parties and by other measures, thus it should not have been
necessary for Le Relais to have been run by the manager alone. It also said that there were
discussions with Mrs McBride before she took on the job at Le Relais, when these matters
were ironed out, and thus Mrs McBride knew what she was undertaking when she took on Le
Relais.
7 Mr Randall referred us to a letter from Mr Reid, the Randall‟s area manager, to Mrs
McBride dated 24th August 2006, and which refers to a meeting between them the previous
day. This letter states that Mrs McBride was not expected to operate Le Relais without any
staff; it was for her to manage her staffing within the set budget. It also stated that Le Relais
would be closed on Mondays, which had not been the case.
By letter a few days later, Mrs McBride accepted to offer of a job as manager at Le
Relais, and referred to some work that needed to be done to the flat.
8 We believe that the hours that Mrs McBride had to work were indeed long, and we
have given careful thought to the question of whether it was in fact impossible for her to
satisfy the income requirement of her employer without working excessive hours. Our
decision is that we cannot draw such a conclusion, for two reasons.
First, from the letter referred to in paragraph 7 above, we take it that there was
discussion between Mrs McBride and her employer, before she took the job, about the
working hours; it appears that this was a matter which concerned her. It also appears that, as
an experienced manager, she was satisfied with what was proposed, for she accepted the offer
of the job. We conclude that the working conditions, that is to say the working hours, were or
should have been expected by Mrs McBride.
Second, and less important, we note that Mrs McBride did not avail herself of the
grievance procedures described in her contract of employment. When matters come near to
being intolerable (and we accept that they did eventually become intolerable), Mrs McBride
should have taken the formal steps described in the contract, or even put pen to paper to
record her despair at having to work for such long hours.
Therefore, we conclude that Mrs McBride‟s complaint that she was constructively
dismissed because of the hours she was expected to work, fails.
Dishonesty
9 Mrs McBride told us that the other reason why she resigned was because she had, in
effect, been accused of dishonesty by Randalls, and she could not continue to work for
Randalls in such circumstances.
10 The Randalls stock take at Le Relais for the period 12/10/06 to 20/11/06 showed a deficit
of £889.85. There was a meeting between Mrs McBride and Mr Reid on 7th December 2006 to
discuss this and other matters, and we were shown Mr Reid‟s file note of the meeting. They
also discussed the fact that the profit was too low and the wage percentage was too high. Mrs
McBride refused to sign this note.
11 On 11th December 2006, there was a disciplinary meeting to consider this deficit,
following which Mr Reid prepared for Mrs McBride a written warning, which he was not able
to give her at the time, for she was signed off work due to sickness. She received it on 13th
December.
On 22nd December 2006, Mrs McBride wrote to Mr Reid that she wished to appeal
against the written warning and stating that she had been accused of dishonesty. She also
stated that she was off work due to stress related illness and that she was giving one month‟s
notice of termination of employment and she would seek advice on the matter of constructive
dismissal.
There followed an exchange of correspondence between the parties.
164
12 We believe that Mrs McBride did believe that her employer suspected her of
dishonesty, and that Randalls may have held that suspicion, but we do not regard that
suspicion as unreasonable, given the deficit and Mrs McBride‟s inability to explain it. This is
most certainly not to say that we think that Mrs McBride was or had been dishonest; we have
insufficient evidence on which to form a firm view, and the little evidence we have leads us to
think it unlikely. That is not the question. The question is whether it was reasonable, in all the
circumstances, for Randalls to hold that suspicion, as one of the possibilities (no more), and
we think that, in the absence of any other explanation at that time, it was reasonable.
There was no need at that point for Mrs McBride to resign; if her employer was
confident that she had been dishonest, doubtless, as Mr Reid told us, it would have summarily
dismissed her. Her dishonesty was merely one of the suspicions held by Randalls.
We are struck by the fact that Mrs McBride resigned before her appeal had been heard,
and we regard this as unjustified. This is particularly so because on a previous occasion when
there had been a discrepancy and a warning, that warning had been lifted when Randalls
accepted that the reason for the discrepancy was due to the behaviour of an employee working
for Mrs McBride in the Temple Bars. She therefore should have had confidence in the appeal
system.
Our conclusion on this point therefore is that Mrs McBride‟s understanding that
Randalls suspected her of dishonesty was not a sufficient ground for her to resign, and
certainly not to resign before her appeal had been heard.
13 We therefore find that Mrs McBride was not constructively dismissed. We have
sympathy for her, for it seems to us that she took on the job at Le Relais knowing that it would
be a difficult job involving long hours, but the impact of it was worse than she expected.
165
Jersey Employment Tribunal
Case Number(s): 0501-006/07 & 1402-036/07
Applicant: Mr Michael Bird
Respondent: G4S Security Services (Jersey) Ltd
Case Summary: Breach of contract; unfair dismissal, notice pay, holiday pay
Hearing on 7 November 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Mr S Mourant and Mr W McPhee, Panel Members
Representation:
For Applicant: Mr Bird represented himself
For Respondent: Mr Peter Cropper, Managing Director
Mrs Liz Hunt, HR Manager
Witnesses: None
Background
Mr Bird lodged two Forms JET 1 with the Jersey Employment Tribunal on the 4th January 2007
and 14th February 2007 respectively. The 4th January 2007 JET 1 Form was lodged whilst Mr
Bird was still employed with G4S and the 14th February 2007 JET 1 Form was lodged following
his dismissal by G4S on 15th January 2007. These JET 1 forms contained a total of 9 complaints
and the Tribunal has heard these complaints at one hearing.
Taking each of the complaints in turn, the Tribunal finds as follows;
1. Breach of Contract of Employment – Article 86 of the Employment (Jersey) Law 2003 („the
Law‟)
Mr Bird informed the Tribunal that on 20th November 2006 a memorandum was sent to all
shift workers at G4S informing them that with effect from December 2006 their salaries would
be paid differently in that a shift allowance of £2.00 per hour would be shown separately from
their weekly pay. Until that point such shift allowances formed an integral part of a shift
workers monthly salary. Furthermore the memorandum stated that the “shift premium is
payable at Managements discretion and may be withdrawn in the event of sickness or
absence”. The Tribunal noted that the memorandum also restricted the ability of the workers
to change shifts without the prior consent of their line manager.
Mr Bird gave evidence to the Tribunal that this memorandum changed the manner in which
the workers worked their shifts: up until this point it was established custom for the shift
workers to swap their shifts to suit themselves and that their shift allowances formed an
integral part of their salaries and had never been treated separately. The Tribunal heard that
this matter came to a head for Mr Bird when he was off work for two weeks in December 2006
following an operation because on his return to work he lost two weeks shift allowances
amounting to £240.00 from his December salary. On 20th December 2006 a further
memorandum was sent around to all „ARC Staff‟ by G4S informing them that with effect from
14th January 2006 all such staff would be required to work a new shift pattern of an average of
forty two hours a week instead of the previous forty hours a week. The extra two hours a week
would be paid at their basic rate plus the shift allowance when they worked the rotating shift
pattern. Mr Cropper on behalf of G4S said that these changes were introduced because,
(a) some people were not fully participating in the rotating shift;
(b) the existing shift system had a quick turnaround which meant that some
people did not get enough time off before starting work again ;
(c) the correlation between hours worked and monthly pay needed to be sorted
out; and,
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(d) in any event, the management had received requests from members of staff
that a shift allowance be identified in their pay.
Mr Bird believed that G4S did not have the right to vary his contract of employment in this
manner and that he had suffered a loss by not receiving his shift allowance as part of his basic
pay during the time he was signed off during December 2006 and accordingly issued form
JET1 noting this complaint on the 4th January 2007.
The Tribunal notes that Mr Bird‟s contract of employment states as follows: “You accept that
changes may be necessary from time to time and that you will be bound by any such changes
that are notified to you in writing by the Company or through the Company notice boards.
Such changes will be effected in accordance with the Securicor General Instructions”.
This clause in Mr Bird‟s contract clearly gives G4S the unilateral right to amend Mr Bird‟s
contract of employment. This is an unusual power and must be exercised carefully and
judiciously. This Tribunal will not accept a variation leading to an unreasonable result and
would seek to impose a restrictive interpretation upon such a provision in a contract that was
used for this purpose.
The Tribunal accepts that Mr Bird did not acquiesce in the changes to his terms of
employment and bought them immediately to the attention of the G4S management.
Accordingly Mr Bird cannot be said to have accepted these changes. A further difficulty with
this matter is that Mr Bird is a member of the Union of General Municipal Boilermakers (the
“GMB”) which had entered into a Memorandum of Agreement with G4S since 1977 and which
appeared to represent workers‟ interests by negotiation with regard to matters such as wages
and salaries and overtime payments. The Tribunal heard that approximately 10 employees of
G4S out of current workforce of 410 people are members of the GMB. Mr Cropper informed
the Tribunal that he informed an official of the GMB of the changes to shift working which
were introduced in the memorandum referred to above, and these changes were accepted
without question. Further, the official came over to Jersey for a „surgery‟ with members in
January 2007 and following a 1:1 consultation with members, no complaints were received
regarding the shift working patterns from employees via the GMB. Mr Cropper also informed
the Tribunal that on reflection the management of G4S accepted that these changes should
have had a longer lead in than that originally announced of 6-8 weeks and for that reason G4S
were willing to reimburse the sum of £240.00 lost by Mr Bird in shift allowances in December
2006.
The Tribunal heard evidence from Mr Bird that having contacted a different official of the
GMB he was advised to follow up his complaint that his contract of employment was
breached by these shift changes by taking up a grievance in accordance with G4S procedure.
Mr Bird informed the Tribunal that he did this but on learning that his grievance would be
heard by the person who had instigated the changes, he decided to abandon it as he had no
faith in the procedure. Mr Bird was subsequently summarily dismissed from his position at
G4S. The Tribunal has sympathy with Mr Bird‟s position – a legitimate grievance procedure
must exist for it to have any meaning or due process in employee- employer relations and at
this point in time G4S failed to provide a valid grievance procedure.
The Tribunal draws no conclusions regarding the role of the GMB or the terms of the
Memorandum of Agreement in the conduct of this case.
However, the Tribunal do not consider that G4S acted incorrectly in varying the terms of Mr
Bird‟s contract of employment. G4S had an unambiguous power to vary this contract and
whilst the results seem harsh, G4S‟s powers do appear to have been exercised for commercial
reasons and not in an unreasonable manner. Furthermore, G4S contacted the GMB for
approval of the changes to the contract, which was obtained. Accordingly the Tribunal do not
find G4S in breach of contract in this regard.
167
2. Article 31 of the Law
Mr Bird complained to the Tribunal that he considered he was singled out by G4S for
unfavourable treatment because he had complained to the Tribunal about a previous matter
and had been involved in other disputes between employees of G4S and its management
regarding disputes under the Law. Mr Bird believed that the shift allowance was deducted
from his wages when he was on sick leave in December 2006 (discussed in paragraph 1 above)
as a consequence of his actions.
Mr Cropper on behalf of G4S explained that the new shift allowance policy was applied
without prejudice by the management of the business in accordance with the memorandum of
20th November 2006 and that Mr Bird had not been specifically singled out for unfavourable
treatment although he was one of the first employees to be affected by it.
Article 31 of the Law states as follows:
31 The right not to suffer detriment
(1) An employee shall have the right not to be subjected to any detriment by any act, or
any deliberate failure to act, by his employer, done on the ground that –
(a) any action was taken, or was proposed to be taken, by or on behalf of the employee
with a view to enforcing, or otherwise securing the benefit of, a right of the employee‟s to
which this Article applies;
(b) the employer was prosecuted for an offence under Article 35 as a result of action
taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing
the benefit of, a right of the employee‟s to which this Article applies; or
(c) the employee qualifies, or will or might qualify, for the minimum wage or for a
particular rate of minimum wage.
(2) It shall be immaterial for the purposes of paragraph (1)(a) or (b) –
(a) whether or not the employee has the right; or
(b) whether or not the right has been infringed,
but, for that paragraph to apply, the claim to the right and, if applicable, the claim that
it has been infringed shall be made in good faith.
(3) This Article shall apply to –
(a) any right conferred by, or by virtue of, any provision of this Law for which the
remedy for its infringement is by way of a complaint to the Tribunal; and
(b) any right conferred by Article 26.
The Tribunal finds that Mr Bird was not subjected to any detriment by G4S as a result of his
complaints about the operation of the new shift system.
3. Breach of Contract – Article 86 of the Law
Mr Bird complained to the Tribunal that G4S was in breach of its own policy on anti-
harassment and bullying.
By clause 1(i) of Mr Bird‟s contract of employment, conditions appearing in the Employment
Handbook also form part of the conditions of Mr Bird‟s employment.
Mr Bird produced a copy of the „Anti-Harassment and Bullying Policy and Procedures‟ relied
upon by G4S.
No specific evidence was heard on this matter from Mr Bird by the Tribunal and the Tribunal
makes no finding on this issue.
4. That G4S were in breach of their duty of care to sick and incapacitated employees
The Tribunal do not have jurisdiction to deal with this complaint.
168
5. Unfair dismissal – Article 68 of the Law
Mr Bird complained to the Tribunal that he had been unfairly dismissed by G4S pursuant to
article 68 of the Law, because he had asserted a statutory right.
G4S offered no evidence to resist this complaint and indicated its willingness to settle this
matter in full. G4S pointed out to the Tribunal that it had tried to conciliate this matter with
Mr Bird since May 2007 to no avail.
The Tribunal finds that Mr Bird‟s complaint is not without some prima facie foundation and
accordingly accepts G4S‟ offer not to contest the complaint.
Mr Bird had worked for G4S for over 12½ years, and in accordance with the Employment
(Awards) (Jersey) Order 2005 the Tribunal hereby awards the sum of 26 weeks pay to Mr Bird.
Mr Bird earned £438.48 per week at the date of his dismissal.
£438.48 x 26 weeks = £11,400.48
6. Notice pay due – Article 56 of the Law
The Tribunal were informed that Mr Bird was dismissed summarily on the 15th January 2007.
G4S expressed its willingness to pay the period of notice due to Mr Bird.
The Tribunal finds that Mr Bird had worked for G4S for over 12½ years. In accordance with
article 56 (1) (e) of the Law he was entitled to receive 12 weeks‟ notice.
Mr Bird earned £438.48 per week at the date of his dismissal.
£438.48 x 12 weeks = £5,261.76
7. Holiday Pay
Mr Bird had complained that he had not received his holiday pay due but in fact this was paid
at a later date and he withdrew this complaint from the Tribunal at the hearing.
G4S without prompting from the Tribunal offered to pay Mr Bird the holiday pay that accrued
during the period of his notice, which amounts to 6 days.
Mr Bird earned £438.48 per week at the date of his dismissal, which is £87.69 per day.
£ 87.69 per day x 6 days = £526.14
8. Unpaid stand down days
At the hearing Mr Bird withdrew his complaint regarding unpaid stand down days as
payment had been received.
9. Unpaid Sick benefit
Mr Bird explained that this complaint was in respect of the £240.00 he had lost in shift
allowances whilst on sick leave in December 2006 and that as G4S had offered to pay this sum
169
to him (as explained in paragraph 1 above) he now withdrew this complaint from the
Tribunal.
10. The Tribunal HEREBY ORDERS the sum of £17,428.38 detailed in full in the schedule
below to be paid to Mr Bird by the Respondent without delay.
Schedule of Awards
1. Unfair dismissal Award £11,400.48
2. Notice Pay due £5,261.76
3. Holiday pay accrued £526.14
4. Shift allowance previously withheld £240.00
Total £17,428.38
170
Jersey Employment Tribunal
Case Number: 2201-020/07
Applicant: Mr. Mark Browning
Respondent: C.I. Fire & Security Limited
Case Summary: Unfair dismissal by way of conduct; provision of updated
written statement of terms of employment.
Hearing on 12th November 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Mrs K Flageul and Mr. P Kirwan, Panel members
Representation:
For Applicant: Mr. Browning represented himself
For Respondent: Mr. Paul King, Engineering Manager
Witnesses: None
The Facts
1. Mr Browning was employed as an Alarm Engineer by C.I. Fire and Security Limited
(“the Respondent “) from 10th February 2003. Early in 2006 the Respondent decided to
appoint Mr Browning to be its lead engineer at a new development on the Waterfront
site. The directors and managers of the Respondent considered that with appropriate
guidance and supervision, Mr Browning was ready to take on this extra responsibility.
Mr Browning told the Tribunal that he was not informed of this decision and
considered his involvement with this project to be just another aspect of his daily
work. Whilst working at this development Mr Browning was also required to
undertake work for other customers of the Respondent.
2. Mr King informed the Tribunal that during 2006 the Respondent had various problems
with Mr Browning‟s performance as an employee and feared that the Respondent‟s
reputation may be damaged. In particular, Mr Browning was never particularly
„visible‟ at the development and the client would often contact the Respondent about
Mr Browning‟s apparent absence. Mr Browning responded that he was responsible for
three areas of work on the development and was always on site; in any case the client
could have located him by telephoning him on his mobile. Mr King said that on a few
occasions „words of advice‟ or informal verbal warnings were given to Mr Browning,
which Mr Browning denied having received.
3. On the 19th October 2006, Mr Browning went on holiday to New Zealand. Before he left
he informed the Respondent that his work at the development was substantially
complete and it could be commissioned by the client. Mr Browning was expected back
to work on the 9th November 2006.
4. In fact the Respondent found faults with Mr Browning‟s work at the development
which he should have dealt with before he went away and that Mr Browning‟s
confirmation that the system was „without faults or snags‟ was incorrect. As a result
the management of the Respondent decided to invite Mr Browning into the office on
his return from holiday for a disciplinary hearing to discuss his performance levels,
attendance and timekeeping at work. The Respondent sent a letter to Mr Browning on
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the 2nd November 2006 instructing him to attend a meeting at 8am on the 9th November
2006 to discuss these issues.
5. Mr Browning returned to Jersey from New Zealand on the 9th November 2006 (not the
8th November 2006 as anticipated) and contacted the Respondent‟s Office Manager to
say that he was too jet lagged to come into work that day or the next day. By that time
Mr Browning had used up all his leave. Mr Browning was reluctantly given the time
off by Mr McEwan the managing director of the Respondent, who also pointed out that
Mr Browning‟s absence caused difficulties with the Emergency Standby Rota as Mr
Browning was scheduled to be on duty on the 9th November 2006. The Tribunal were
informed that this rota is published months in advance and Mr Browning would have
known that he was rostered for duty that night. Mr King informed the Tribunal that
Mr Browning‟s absence caused inconvenience to the Respondent not only because
someone else had to take his shift at short notice but also it compromised the
Respondent‟s customer care standards.
6. As Mr Browning had failed to attend the disciplinary hearing on the 9th November
2006 a further disciplinary hearing was scheduled for 8am on the 14th November 2006,
the letter clearly requesting Mr Brown to attend stated these three points:
(a) That Mr Browning was entitled to have a representative of his choice at the
hearing.
(b) That the hearing would discuss Mr Browning‟s performance in respect of
timekeeping, attendance, work performance, leaving site without notice and
failure to follow simple instructions.
(c) That Mr Browning‟s failure to return to work on time following his holiday
would be discussed as well as his failure to attend the previous disciplinary
hearing scheduled for 9th November 2006.
7. On the 14th November 2006, Mr Browning attended the disciplinary hearing referred to in
paragraph 6 above with Mr McEwan. Mr King was also in attendance. The Tribunal were
informed by Mr Browning that Mr McEwan immediately invited Mr Browning to resign in
order to „save a lot of bother‟. Mr Browning refused to do this, but realising the meeting was
more serious than he had anticipated (he thought he was going to receive a verbal warning
only), he asked to contact his wife so that she could attend as his representative. Mr McEwan
allowed Mr Browning to make the call but did not delay the conduct of the meeting as Mr
Browning had been invited to have a representative present from the beginning and he had
chosen not to do this. In fact by the time Mrs Browning arrived, the meeting had finished. Mr
McEwan went through the Respondent‟s complaints about Mr Browning‟s conduct and
performance at work (as described in paragraph 6 (b) above) and also his unauthorised leave
(as described in paragraph 6 (c) as above). At the end of meeting Mr Browning received a
verbal warning from Mr McEwan, and was also informed that he must now work his
contracted hours and promptly put in his completed time sheets in order that he could be
managed as an employee by Mr McEwan and Mr King. This was accepted by Mr Browning
who then went back to work.
8. However on reflection Mr Browning did not feel that the meeting had been conducted fairly
and he appealed against the meeting in a letter to Mr McEwan dated 18th November 2006. The
Tribunal notes that Mr Browning did not appeal against the verbal warning sanctioned
against him. On the 24th November 2006 the Respondent replied to Mr Browning‟s complaints
in full, but no offer was made to lift the verbal warning.
9. On the 21st November 2006 Mr McEwan wrote to Mr Browning confirming the outcome of
their meeting of the 14th November 2006. The Tribunal notes that the letter confirms the verbal
warning given in respect of the performance issues referred to in paragraph 6 (b) above but
goes on to issue a final written warning in respect of Mr Browning‟s failure to return to work
172
as referred to in paragraph 6 (c) as above. The Tribunal notes that in the letter the Respondent
gave a right of appeal against the verbal warning but not against the Final Written Warning.
Furthermore the Tribunal heard evidence from both parties that enclosed with this letter was a
copy of the standard JACS disciplinary procedure, which the Respondent refers to in its letter
of 21st November 2006 as relying upon as its disciplinary procedure. The Tribunal were
informed by Mr Browning that this was the first time he had seen this procedure – it was not
contained in his contract of employment or any staff handbook or exhibited anywhere at the
workplace. The procedure had also not been shown to Mr Browning at the meeting of the 14th
November 2006. This evidence was not disputed by the Respondent. The Tribunal were also
informed by Mr Browning that this was the first time he realised that he had received a final
written warning as this was not mentioned at the meeting of the 14th November 2006. Mr King
responded that Mr McEwan had always made it clear that the two issues (in paragraph 6 (b)
and (c) above) would be dealt with separately, and Mr McEwan would respond to Mr
Browning‟s failure to return to work on time, after due consideration. Mr Browning explained
to the Tribunal that he felt upset by this letter but decided not to take any further action but
instead just get on with his work as he realised his job was in jeopardy.
10. The Tribunal were informed that on Friday 17th November 2006 Mr Browning was working
at the development on the Waterfront. Mr Browning said it had become too dark for him to
complete his work safely so he asked permission from the Respondent‟s office to finish the
job on Monday 20th November 2006 – amounting to about thirty minutes‟ work. The
Respondent denied giving this permission and Mr King gave evidence that Mr Browning‟s
attendance at the development on the morning of the 20th November affected the scheduling
of jobs for him by the Respondent for that day which caused inconvenience to their customers
and thus damage to the Respondent‟s reputation. Mr King informed the Tribunal that
furthermore, Mr Browning put in his time sheet for Friday 17th November 20006 for only seven
and half hours and that he had been instructed at the meeting held on 14th November 2006 that
he had to account for a full day (eight hours) each working day. Mr Browning countered this
by stating that he had worked a full day but he had simply filled out his time sheet
incorrectly. Mr King informed the Tribunal that Mr McEwan considered that these two errors
were the final straws, and decided to dismiss Mr Browning with effect from the 30th
November 2006, although one month‟s notice was paid to him in lieu. A letter was written to
Mr Browning on the 29th November 2006 by the Respondent where Mr McEwan listed the
reasons for his dismissal as follows:
(a) Failure to work eight hours as reported on 17 November 2006,
(b) Compromising the work schedule for the following week by carrying
forward thirty minutes work from the previous week,
(c) Failure to keep an accurate record drawing and mark circuit cables for the
development project, and
(d) General unreliability in the performance of tasks.
11. The Tribunal were informed by Mr Browning that he was not invited to a meeting to
discuss the reasons for his dismissal or invited to respond or appeal in any way.
12. Mr King informed the Tribunal that the delay in sacking Mr Browning after the events of
17th and 20th November 2006 was caused by the difficulty in recruiting skilled engineers in
Jersey. Accordingly it was a serious decision to dismiss Mr Browning and lose his skills. At
that time the Respondent employed five engineers and an improver. Mr King said that a new
employee had been engaged whilst Mr Browning was on holiday but that Mr Browning was
still a loss to the business.
13. On the 22nd January 2007, Mr Browning lodged a complaint of unfair dismissal by the
Respondent with the Tribunal.
The Law
14. Article 64 of the Employment (Jersey) Law 2003 („the Law‟) requires an employer to show
the reason for dismissal when fairness or unfairness of that dismissal is being considered.
173
Some reasons are considered potentially fair reasons and these are set out in Article 64 (2). The
poor conduct of an employee is a potentially fair reason for dismissal. In any event an
employer is required by virtue of article 64 (4) to have acted reasonably in treating such a
reason as sufficient reason for dismissal and to have acted in accordance with equity and the
substantial merits of the case.
15. Articles 64 (1) (2) and (4) are set out as follows:
(1) In determining for the purpose of this Part whether the dismissal of an employee
is fair or unfair, it shall be for the employer to show –
(a) the reason( or, if more than one, the principle reason) for the dismissal:
And
(b) that it is either a reason failing within paragraph (2) or some other substantial
reason of a kind such as to justify the dismissal of an employee holding the position
which the employee held.
(2) A reason shall fall within this paragraph if it –
(a) relates to the capability or qualifications of the employee for performing work of
the kind which he was employed by the employer to do;
(b) relates to the conduct of the employee;
(c) is that the employee was redundant; or
(d) is that the employee could not continue to work in the position which he held
without contravention, (either on his part or on that of his employer) of a duty or a
restriction imposed by or under enactment.
(3) …….
(4) where the employer has fulfilled the requirements of paragraph (1), the
determination of the question whether the dismissal is fair or unfair (having regard to
the reason shown by the employer) shall –
(a) depend on whether in the circumstances (including the size and administrative
resources of the employer‟s undertaking) the employer acted reasonably or unreasonably
in treating it as sufficient reason for dismissing the employee; and
(b) be determined in accordance with equity and the substantial merits of the case.
(5) …...
16. Article 64 (5) refers to situations which are considered by the law to automatically unfair
dismissals, and they do not apply to this case.
17. As stated in paragraph 14 above, poor conduct is a potentially fair reason for dismissal.
Accordingly the Tribunal has considered whether the Respondent acted reasonably or not in
treating Mr Browning‟s conduct as being a sufficient reason for dismissal and by looking at
the equity and substantial merits of the case.
18. The Tribunal are going to follow the views of the Deputy Bailiff in Voisin v Brown [2007]
JRC47 para 28, where he states as follows;
„The Tribunal must therefore concentrate not on whether the employer‟s decision or the procedure
adopted by him was wrong but on whether it was so wrong as to fall outside the band of
reasonable actions on the part of a reasonable employer.‟
The Tribunal‟s decision
19. The Tribunal is satisfied that Mr Browning‟s conduct as an employee fell short of the
standard required by the Respondent. Evidence was clearly presented that the Respondent
had significant issues with Mr Browning‟s performance, attendance and time-keeping during
the waterfront development and the Respondent endeavoured to deal with these matters by
way of a verbal warning issued at the meeting on the 14th November 2006. The Respondent
was also entitled to be disappointed that Mr Browning not return to work following his
holiday and this did cause inconvenience to the employer. The Tribunal agrees that this is
174
conduct that warrants a disciplinary procedure. Furthermore the Tribunal notes that Mr
Browning failed to record eight hours of work as he was required to do on the 17th of
November 2006 and this was in breach of his contract of employment.
20. As stated in paragraph 14 above, an employee‟s conduct is a potentially fair reason for
dismissal. Accordingly the Tribunal has considered whether the Respondent acted reasonably
in treating Mr Browning‟s conduct as being sufficient reason for dismissal and by looking at
equity and the substantial merits of the case.
21. In this case the reasonableness of the Respondents‟ actions in dismissing Mr Browning all
stems from the procedure adopted by the Respondent in disciplining Mr Browning for his
misconduct.
22. The procedure adopted by the Respondent is detailed in paragraphs 6 to 11 above. The
Tribunal have identified the following difficulties with this process-
(a) The Respondent did not have a Disciplinary Procedure in place until it issued a
copy of the standard JACS disciplinary procedure with its letter to Mr Browning of the
21st November. Mr Browning‟s contract of employment did not contain a disciplinary
procedure (see paragraph 27 below), and no procedure was contained in a staff
handbook or even exhibited on a staff notice board. Furthermore the JACS disciplinary
procedure was not sent to Mr Browning until the 21st November 2006, therefore after
his first disciplinary meeting and after the decisions at that meeting had been taken.
This apparent absence of a disciplinary procedure at the beginning of the process then
its introduction half way through a series of events leading to Mr Browning‟s
dismissal causes the Tribunal great concern.
(b) The immediate consequence of the Respondent‟s failure to have a disciplinary
procedure in place at the outset is that it is clear to the Tribunal that Mr Browning did
not know the importance of the meeting arranged for the 14th November 2006 or the
consequences likely to arise out if it,
(c) Even when the JACS disciplinary procedure was adopted (which the Tribunal have
taken to be from the 21st November 2006, the date Mr Browning was informed of its
existence), the Respondent failed to follow it in that it did not:
(i) give Mr Browning the right of appeal against his Final Written Warning, or
(ii) inform Mr Browning of the nature of the complaints made against him and
leading to his dismissal (see paragraph 10 above) or investigate those
complaints and allow Mr Browning to respond to the complaints made against
him before he was dismissed, or
(iii) allow Mr Browning to appeal against the decision to dismiss him.
(d) At the meeting of the 14th November 2006, Mr Browning was immediately asked to
resign before the complaints made against him were discussed. The Tribunal considers
that this action indicates that Mr McEwan‟s mind was made up as to a possible
outcome of the meeting before it had commenced and this mindset prejudiced all
subsequent dealings between the Respondent and Mr Browning.
(e) Mr Browning‟s letter of dismissal dated 29th November 2006 refers to events (see
paragraph 10(c) above) which were dealt with and sanctioned at the disciplinary
meeting of the 14th November 2006. These examples of misconduct are therefore not
directly relevant to his final dismissal and should not have been listed as reasons for
his dismissal.
23. The Tribunal wishes to point out that it does not consider unreasonable the Respondent‟s
decision not to adjourn the 14th November 2006 disciplinary hearing so that Mr Browning‟s
wife could attend as his representative. Mr Browning was invited to bring a representative to
the meeting in the letter of 10th November 2006 and the matters to be discussed at that meeting
175
are clearly set out in that letter. Mr Browning chose not to avail himself of the opportunity to
have a representative present throughout that meeting and he cannot now complain about that
matter to the Tribunal.
24. The Tribunal have also considered the circumstances of this case. The Tribunal recognises
that the Respondent is a small business with no HR function. However the Law had been in
force for 18 months or so when this disciplinary process leading to dismissal was commenced.
By that time all employers were aware that employment law had changed in Jersey. The
Respondent was clearly aware of JACS because evidence was heard that it contacted them for
advice and indeed finally adopted their disciplinary procedure. JACS provide free, accessible
advice on employment matters: there is no excuse not to use their services. The Tribunal will
overlook badly written letters and inadvertent breaches of procedure by small businesses with
no specific employment law training where no real harm is caused, but it cannot overlook an
apparent lack of interest to learn or abide by new processes and laws in place.
Conclusion
25. The importance of a fair disciplinary procedure cannot be overemphasised by the Tribunal.
Such procedures exist not only for the protection of employees to ensure that they are dealt
with in a fair and consistent manner but also to assist employers in terminating the
employment of unsatisfactory employees. In this case the employer had reason to be
concerned about the conduct of its employee. Such conduct did not warrant instant dismissal
but instead of following an established process involving investigating complaints,
establishing complaints, hearing the other side, taking appropriate action and allowing
appeals to be made, the Respondent appears to have adopted an ad hoc procedure which
incorporated none of these principles of equity and fairness. There is no reason why a fair
process of dismissal was not followed. Mr Browning may not have been a perfect employee
but he was dealt with unfairly by the Respondent and for this reason the Tribunal finds him
unfairly dismissed.
26. Mr Browning was employed by the Respondent for 3 years and 10 months. Mr Browning
earned £540 per week
In accordance with the Employment (Awards) (Jersey) Order 2005, the Tribunal HEREBY
AWARDS 16 weeks‟ pay to Mr Browning:
£540 per week x 16 weeks = £8,640
Failure to provide written statement of terms of employment in accordance with Article 3 of
the Law
27. Article 3 (2)(9)(vi) of the Law requires a written statement of the terms of employment to
contain particulars of any existing terms and conditions relating to disciplinary and grievance
procedures. From the evidence heard by the Tribunal it is apparent to the Tribunal that Mr
Browning‟s contract of employment did not contain any disciplinary procedures and until his
contract of employment was altered by the introduction of the JACS disciplinary procedure by
the letter of the 21st November 2006 but he was not informed of such alteration to his terms of
employment as required by Article 4 of the Law.
28. In accordance with Article 9 of the Law this is an offence punishable by a fine not
exceeding £5,000 (being level 4 on the Standard Scale) in accordance with the Criminal Justice
(Standard Scale of Fines)(Jersey) Law 1993
The Tribunal hereby fines the Respondent the sum of £250.00 for failing to comply with
Article 3 of the Law.
176
Schedule of Awards & Fines
1. Award - Unfair Dismissal (Article 77) £8,640.00
2. Fine - Failure to notify change in terms of employment (Article 4) £250.00
177
Jersey Employment Tribunal
Case Number: 0501-006/07
Applicant: Mr Robert Le Maistre
Respondent: Collas & Le Sueur Limited
Case Summary:
Hearing on 19th November 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Mr. S Mourant and Mr. T Langlois, Panel members
Representation:
For Applicant: The Applicant represented himself
For Respondent: Mr. Paul Collas, Director
Witnesses: None
The Facts.
1. Mr Le Maistre commenced work for the Respondent as an apprentice electrician on 1st
June 1972. Mr Le Maistre worked continuously for the Respondent and when he was
twenty seven years old he was appointed a manager of the business and when he was
in his thirties (about twenty years ago), he was appointed as a director.
2. Mr Collas was also apprenticed to the firm, which at that time was owned by his
father. About twenty one years ago Mr Collas became a manager of the business too
and eventually took over the business from his father in 2005.
3. Mr Le Maistre and Mr Collas worked together as managers of the business for twenty
years or so. Their duties involved meeting clients, giving quotes for work, organising
jobs and the men to do them and overseeing the billing for that work. Generally each
manager had their own clients and contacts but it was clear to the Tribunal from the
evidence heard that their relationship was harmonious enough. In addition both Mr Le
Maistre and Mr Collas would regularly use their skills as electricians to give directions
and guidance to the firm‟s electricians whilst on a job and both would undertake
electrical work when required from time to time in respect of emergencies or
breakdown calls from clients.
4. Mr Le Maistre gave evidence that his relationship changed with Mr Collas following
an incident in April 2004 when Mr Le Maistre gave instructions to the firm‟s bank to
transfer the sum of £9,000 into a pension operated by the Respondent for the benefit of
Mr Le Maistre. The Tribunal heard evidence from both parties that whilst deposits of
monies were made into this pension account by the Respondent on an annual basis,
Mr Collas senior had not approved this particular transfer. Mr Collas senior gave
instructions that Mr le Maistre was to be taken off the company‟s bank mandate
forthwith and that no further financial information about the Respondent‟s affairs was
to be divulged to Mr Le Maistre. Mr Le Maistre informed the Tribunal that the
Respondent had been informed that if payments were not made into the fund on a
regular basis, the fund would be frozen and no more contributions could be made. As
Mr Collas senior had sanctioned a payment of £10,000 onto the fund in the previous
year. Mr Le Maistre has assumed that a payment of £9,000 be correct. He had tried
unsuccessfully to discuss this matter a few times with Mr Collas senior and in the end
he took the decision himself to make the payment in order to avoid the fund
becoming frozen. Following the falling out over this matter, Mr Le Maistre made
contributions to the fund in 2005 and 2006 entirely out of his own savings.
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5. Mr Le Maistre gave evidence to the Tribunal that whilst his duties as a Manager of the
business did not change following the incident, he felt his relationship with Mr Collas
and Mr Collas senior was affected. Mr Le Maistre said that he felt that he was being
eased out of the business after that time.
6. Mr Le Maistre informed the Tribunal that as he had no knowledge of the financial
situation of the business he was concerned about continuing as a director and in March
2006, following advice from the Respondent‟s accountants, he resigned his
directorship.
7. The Tribunal were also informed by Mr Le Maistre that from about 2004 he became
concerned about the company‟s financial position as believed that Mr Collas was not
producing accounts for the customers in a timely fashion and too much time was being
written off. This in turn was affecting the Respondent‟s cash flow. In addition Mr
Collas would, he believed, not return customer‟s calls or tender for work offered to the
business. Mr Le Maistre spoke to Mr Collas senior about these problems and was told
to deal with Mr Collas directly. Mr Le Maistre informed the Tribunal that he believed
that these conversations affected his relationship with Mr Collas too. Mr Collas
denied that there was any „behind the scenes‟ manoeuvring to oust Mr Le Maistre from
the business.
8. Mr Collas explained to the Tribunal that whilst the Respondent is an established and
successful business, it has had to adapt to a changing market in Jersey. Mr Collas
explained that as a director he is not prepared to drop his costs or spend chargeable
time preparing a tender for work which he knows his firm will not be awarded. In
addition, there are now many more electrical contracting firms than ten years ago and
even the smaller ones will tender for the same work as the larger firms. Mr Le Maistre
explained that there is also the economic reality that clients do not now commission
non-essential works. With all of these factors in mind, in June 2006 Mr Collas decided
that in order to save costs the Respondent would need to make staff redundant. At that
time the Respondent employed about sixteen people. Mr Collas contacted JACS about
four or five times and following their advice issued a letter of warning of redundancies
to all staff on the 28th June 2006. This letter was sent to each member of staff, including
Mr Le Maistre, with their pay slips. Subsequently, following JACS advice, Mr Collas
„scored‟ each of his employees bearing in mind their disciplinary record, time keeping,
skills and training and came to a decision to make three electricians and one secretary
redundant. The notices of redundancy were issued and accepted without incident. This
evidence was not contradicted by Mr Le Maistre.
9. The Tribunal were informed that this left the Respondent with seven electricians, two
apprentices, a secretary, and two managers (Mr Collas and Mr Le Maistre). However by
September 2006, Mr Collas was still concerned about the Respondent‟s financial
position. In his opinion the Respondent was operating on its minimum level of skilled
staff so he decided to look at the management for savings. Mr Collas informed the
Tribunal that as there was only himself and Mr Le Maistre as managers, and he (Mr
Collas) was the owner of the business, unfortunately this meant Mr Le Maistre‟s
position was redundant. So, on the 25th September 2006, on his return from holiday Mr
Le Maistre was handed a letter of redundancy by Mr Collas. Mr Le Maistre was given
sixteen weeks notice and his employment terminated with effect from the 5th January
2007 (see paragraph 39 below). Mr Collas said this letter was given by him with no
satisfaction but he simply had no choice in the circumstances: the business had to save
costs and its wages bill was extremely high in comparison to the fees generated.
10. Evidence was heard from both parties that Mr Le Maistre was extremely shocked to
receive the letter of redundancy. The Tribunal heard that there was no discussion of its
contents by the parties or of alternatives to Mr Le Maistre losing his job. The parties
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continued working alongside each other performing their tasks until Mr Le Maistre‟s
final date of employment with no further discussion of Mr Le Maistre‟s position.
11. On the 5th January 2007, Mr Le Maistre lodged a form JET 1 at the Jersey Employment
Tribunal Office containing the following complaints:
(a) that he had been unfairly dismissed from his position;
(b) that he was due 25 days unpaid holiday pay;
(c) that he was due 6 days notice pay;
(d) that he was due an annual bonus of £20,000;
(e) that he was due pension contributions since 2004 of £10,000 pa;
(f) that he was due the benefit of a company car and that had a value of three
thousand pounds pa.
(g) that he was due the benefit of the use of a mobile telephone to the value of
£300 pa.
(h) that he had not received a written statement of the terms of his employment.
The Tribunal have considered each of these complaints in turn.
Unfair Dismissal
The Law
12. Article 64 of the Employment (Jersey) Law 2003 („the Law‟) requires an employer to show
the reason for the dismissal when fairness or unfairness of that dismissal is being considered.
Some reasons are considered potentially fair reasons and these are set out in Article 64 (2).
Redundancy is a potentially fair reason for dismissal. In any event an employer is required by
virtue of article 64 (4) to have acted reasonably in treating such reason as sufficient reason for
dismissal and to have acted in accordance with equity and the substantial merits of the case.
13. Articles 64 (1) (2) and (4) are set out as follows:
General
(1) In determining for the purposes of this Part whether the dismissal of an employee is
fair or unfair, it shall be for the employer to show –
(a) the reason (or, if more than one, the principal reason) for the dismissal; and
(b) that it is either a reason falling within paragraph (2) or some other substantial
reason of a kind such as to justify the dismissal of an employee holding the position
which the employee held.
(2) A reason shall fall within this paragraph if it –
(a) relates to the capability or qualifications of the employee for performing work of
the kind which he was employed by the employer to do;
(b) relates to the conduct of the employee;
(c) is that the employee was redundant; or
(d) is that the employee could not continue to work in the position which he held
without contravention, (either on his part or on that of his employer) of a duty or
restriction imposed by or under an enactment.
(3) In paragraph (2)(a) –
(a) “capability”, in relation to an employee, means his capability assessed by reference
to skill, aptitude, health or any other physical or mental quality; and
(b) “qualifications”, in relation to an employee, means any degree, diploma or other
academic, technical or professional qualification relevant to the position which he held.
(4) Where the employer has fulfilled the requirements of paragraph (1), the
determination of the question whether the dismissal is fair or unfair (having regard to
the reason shown by the employer) shall –
(a) depend on whether in the circumstances (including the size and administrative
resources of the employer‟s undertaking) the employer acted reasonably or unreasonably
in treating it as a sufficient reason for dismissing the employee; and
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(b) be determined in accordance with equity and the substantial merits of the case.
(5) ………..
14. Article 64 (5) refers to situations which are considered by the Law to be automatically
unfair dismissals, and they do not apply in this case.
15. Article 2 (1) of the Law defines Redundancy as follows:
Redundancy
(1) For the purposes of this Law an employee who is dismissed shall be taken to be
dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to –
(a) the fact that his employer has ceased or intends to cease –
(i) to carry on the business for the purposes of which the employee was employed by
him, or
(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business –
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the
employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.
16. The Tribunal heard evidence from Mr Collas as set out in paragraph 8 above that the
business of the Respondent was not profitable and having already undergone a round of
redundancies in June 2006, the business no longer generated enough work for the services of
two managers and in the circumstances he had no option but to make Mr Le Maistre
redundant.
17. By applying Article 2(1) of the law to Mr Collas‟ decision it is clear that Mr Collas‟s
decision, “ is…………….attributable to the fact that the requirements of [the business] for
employees to carry out the work of a particular {here manager of works] have ceased“.
Accordingly the Tribunal finds that Mr Le Maistre was made redundant.
18. As stated in paragraph 18 above, redundancy is a potentially fair reason for dismissal.
Accordingly the Tribunal has considered whether the Respondent acted reasonably or not in
treating redundancy as being a sufficient reason for dismissal and by looking at the equity
and substantial merits of the case.
19. The Tribunal are going to follow the views of the Deputy Bailiff in Voisin v Brown [2007]
JRC47 para 28, where he states as follows;
„Where … an employer declares an employee redundant and fails to warn or consult him in
accordance with the procedural requirements summarised by Lord Bridge (in Polkey v A.E.
Dayton Services Ltd [1988] AC 344] and adopted in [Goguelin v Stuart Banks (Carpenters &
Builders) Limited 2006 JET], it is not open to the Tribunal to hold without more ado that, as a
result of such failure, the dismissal was unfair. Nor is it permissible for the members of the
Tribunal to ask themselves whether they consider that the failure to warn or consult in the
particular circumstances was wrong and to conclude therefore that the dismissal was unfair. To
hold such a dismissal to be unfair on such a basis is to fail to adopt the band of reasonableness
test and would be an error of law… The Tribunal must therefore concentrate not on whether the
employer‟s decision or the procedure adopted by him was wrong but on whether it was so wrong
as to fall outside the band of reasonable actions on the part of a reasonable employer.‟
20. To summarise, this Tribunal has considered each of these aspects in looking at the facts of
this case –
(i) The extent of consultation with the employees
(ii) The amount of warning of redundancy given
(iii) The establishment of fair criteria for selection of employees for redundancy
(iv) The exploration of alternatives to redundancy
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(v) Bearing in mind the size and administrative resources of the Respondent‟s
business, whether the actions of the Respondent were those of a reasonable
employer acting within the band of reasonable responses to the situation
presented to it.
The Tribunal has considered each of these points in turn in the context of this case.
The Tribunal‟s decision.
The issues of warning and consultation.
21. Mr Collas informed the Tribunal that the „warning‟ letter of 28th June 2006 was sent to all
staff including Mr Le Maistre and the letter coupled with the knowledge Mr Le Maistre must
have had as a manager, that the business was simply not doing enough work to cover its bills,
was sufficient warning that „jobs were in jeopardy‟. Mr Collas was clear that at no time was
Mr Le Maistre‟s position singled out as being safe from redundancy. Further, the letter of the
28th June 2006 asked for “constructive thoughts” on the warning that the company was
considering redundancies. Thus, Mr Collas submitted, the Respondent had consulted with its
employees prior to the redundancy process. Indeed some employees had responded by
suggesting increased advertising or three day weeks but Mr Le Maistre had not specifically
responded to the request for ideas.
22. Mr Le Maistre contradicted this evidence by stating that he was always reminding Mr
Collas to send out his bills and to contact clients, as he was aware of the seriousness of the
situation. However Mr Le Maistre said that he did not consider the letter of 28th June 2006 to
apply to him.
23. The Tribunal is satisfied that Mr Le Maistre was aware of the financial difficulties of the
Respondent in 2006. Even if he was not privy to the accounts of the company he was certainly
experienced enough to know that cut backs had to be made. The Tribunal is unsure whether
Mr Le Maistre was sufficiently “warned” that his position was jeopardy by the letter of the
28th June 2006 simply because the Tribunal believes that Mr Le Maistre did not consider
himself an “employee”, but something apart from that status. However the Tribunal is
satisfied that Mr Collas certainly meant to warn all employees – including Mr Le Maistre – by
that letter and does not consider such assumption to be unreasonable coupled with the
inherent knowledge of Mr Le Maistre of the Respondent‟s financial situation.
24. The Tribunal is also of the opinion that in any event when the June 2006 redundancies
were made, Mr Le Maistre certainly would not have considered his position threatened at all.
For this reason it became particularly important to consult with Mr Le Maistre prior to making
his position redundant. Mr Collas clearly decided that Mr Le Maistre had to leave the business
in order for it to save money. In fact other options could have boon looked at such as:
 whether Mr Le Maistre would accept a pay cut,
 whether Mr Le Maistre would work a shorter week,
 whether Mr Le Maistre could take another position in the firm.
25. The Tribunal heard evidence that Mr Collas attempted to cut Mr Le Maistre‟s wages in 2005
but for some reason this option was not discussed in 2006. The Tribunal also heard evidence
from Mr Le Maistre that his skills as an electrician were excellent and up to date and he would
have been willing to work at an electrician for the Respondent if it had been offered to him.
Mr Collas seamed amazed by this information and said it had not even crossed his mind to
offer such a position to Mr Le Maistre. However this is the point of consultation- so that prior
to a redundancy, both parties can step back from the decision and look at the situation as a
whole and consider alternatives that either may not have thought of before. As the Tribunal
has said in previous decisions, these conversations do not necessarily have to have a successful
outcome – there may be very good commercial reasons why such alternative reasons cannot be
considered or accepted by an employer but nevertheless this process of consultation must take
place. It is clear that in this case there was no consultation between the parties.
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The selection criteria
26. Mr Collas gave evidence that as he needed to make a redundancy from the management
level of the business (the workforce being at bare minimum) and there were only two
managers, with him being the owner, that Mr Le Maistre had to lose his job as he could not
apply to any selection criteria in the circumstances.
27. The Tribunal accepts that in this situation it would be ludicrous to slavishly apply
selection criteria to the sole candidate for redundancy. However in these circumstances it is
necessary to look at the various skills the employee has and then consider whether those skills
can be applied elsewhere in the business. As mentioned in the paragraph 25 above, Mr Le
Maistre is a skilled and experienced electrician and the longest serving employee of the
business. If Mr Collas had identified these attributes and consulted with Mr Le Maistre he
would have been forced to consider whether Mr Le Maistre could be moved to that side of the
business. The Tribunal considers that no consideration was made of Mr Le Maistre‟s skills,
experience or contribution to the business.
The obligation to consider alternatives
28. It is important that alternatives to redundancy are fully discussed and considered by the
parties involved. In the some redundancy situations this consideration will happen following
a period of consultation, in others it will happen at the same time as consultation, depending
on the size of business and the relationship of the parties. In this case, Mr Le Maistre had
worked for the Respondent for nearly 35 years and alongside Mr Collas in the office for over
twenty years. Furthermore, Mr Le Maistre had seen Mr Collas come up through the firm as an
apprentice, rising to owning the business. The Tribunal never underestimates the difficulty of
these conversations in small businesses but they must not be shied away from. In this case, Mr
Collas should have taken the lead having identified Mr Le Maistre‟s skills (see paragraph 27)
to discuss any alternatives to Mr Le Maistre‟s redundancy.
29. In this case there was no such discussion. The Tribunal has considered whether Mr Le
Maistre should have bought up this matter, after all he said he would have stayed on as an
electrician “to see how he got on”, if he had been asked. But he did not because he was “in
shock” at being made redundant. The Tribunal does not consider this response by an
employee of 35 years standing, who, had been made redundant by someone of less experience,
to be unreasonable and the onus remains on the employer to start this conversation.
The reasonable response taking into account the size and resources of the business of the
Respondent.
30. The Tribunal has considered whether the actions of Mr Collas is making Mr Le Maistre
redundant are within the band of reasonable responses by a reasonable employer.
31. Mr Collas was quite clear that he had no choice but to make Mr Le Maistre redundant
because there was not enough work for two managers and the Respondent would benefit by
saving Mr le Maistre‟s salary. Mr Collas also gave evidence that a year on from that decision
he has undertaken Mr Le Maistre‟s duties himself, no other employees have been employed to
assist him and the Respondent is now on a firmer financial footing. The Tribunal cannot
criticise this situation or comment upon Mr Le Maistre‟s assertion that Mr Collas always
wanted to operate a smaller business and manipulated the situation to reach that aim. Again,
the Tribunal cannot criticise Mr Collas‟ commercial decisions. The Tribunal heard evidence
that Mr Collas visited JACS „four or five times‟ prior to the round of June 2006 redundancies
and using that advice, those redundancies do appear to have gone through without a hitch.
However Mr Collas did not state that he returned to JACS for advice prior to making Mr Le
Maistre redundant. In that case, Mr Collas went ahead with his decision without applying any
of the advice previously supplied by JACS. Mr Collas simply gave Mr Le Maistre a letter of
redundancy without explanation or discussion. Mr Collas does not seem to have considered
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the impact such a decision would have on Mr Le Maistre after thirty five years employment
most of which was spent in a senior management role alongside Mr Collas or his father. Mr
Collas overlooked the principles of consultation, identification of skills and consideration of
alternative employment when dismissing Mr Le Maistre. A simple discussion of Mr Collas‟
reasons for considering redundancy might have lead to Mr Le Maistre remaining in
employment or at least feeling his contribution to the business over the years was valued. In
the circumstances the Tribunal finds it discourteous and more importantly, unreasonable, that
such a discussion or consideration of Mr Le Maistre‟s position did not take place.
Conclusion
32. The Tribunal finds that Mr Le Maistre was unfairly dismissed.
33. Mr Le Maistre was employed by the Respondent for 34 years and 7 months. Mr Le Maistre
earned £1,260.00 per week.
34. In accordance with the Employment (Awards) (Jersey) Order 2005, the Tribunal HEREBY
AWARDS 26 weeks pay to Mr Le Maistre:
£1,260.00 per week x 26 weeks = £32,760.00
Holiday Pay
35. Mr Le Maistre gave evidence that when he started work for the Respondent on 1st June 1972
he was given 2 weeks holiday but that he had to work a full year in order to be entitled to take
that holiday. Mr Le Maistre explained that his holiday year at the Respondent had always run
from 1st June – 31st May and because of the anomaly in his first year of employment, he had
never taken his full entitlement of holiday. The Tribunal were informed that Mr Le Maistre
was now entitled to 25 days holiday a year and because holidays were paid in arrears he was
entitled to receive 14 days in respect of the period 1st June to 12th January 2007 (see paragraph
40 below).
36. Mr Collas gave evidence that the Respondent‟s holiday year was based on a calendar year
and he had not realised that Mr Le Maistre‟s holidays worked on a different basis.
37. Mr Le Maistre also claimed for 11 days leave which he had carried forward from previous
years but he accepted that this sum had now been paid by the Respondent and withdrew this
complaint at the hearing.
38. After consideration the Tribunal HEREBY ORDERS as follows:
THAT on the basis that the Applicant was entitled to 25 days leave for the period 1st June to
31st May 2006 and 14 days leave for the period 1st June to 12th January 2007, the Respondent
must go back through its records and check the amount of leave taken by the Applicant during
each of those periods and set it off against the leave he was entitled to as set out above and
make a report to the Tribunal of the resulting position following which the Tribunal will
make an Order for payment accordingly in accordance with Article 11 of the Law.
Notice Pay
39. Mr Collas gave evidence to the Tribunal that when he drafted Mr Le Maistre‟s letter of
redundancy he inadvertently calculated the 16 weeks notice due to Mr Le Maistre as expiring
on the 5th January 2007 not the 12th January 2007 which would have been correct. The Tribunal
accepts that this was a mistake. Mr Collas said that on learning of his error he asked Mr Le
Maistre to stay on for a further week but Mr Le Maistre refused, preferring to go on the earlier
date. Mr Collas pointed out that whilst he was willing to pay Mr Le Maistre for the extra
weeks notice due to him, he did not wish to pay for Thursday 4th January 2006 which Mr Le
Maistre had taken as unauthorised leave and was now claiming as due to him.
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40. The Tribunal agrees that Mr Le Maistre took the 4th January 2006 as unauthorised leave
and should not be paid for the day and, HEREBY ORDERS that a weeks pay of £1,260 be paid
to Mr Le Maistre by the Respondent in order to bring his notice entitlement up to 16 weeks in
accordance with Article 56 of the Law.
Bonus Payment
41. Mr Le Maistre informed the Tribunal that up until 5 years ago, if the Respondent‟s
business had done well in a particular year, Mr Collas senior would award a bonus to Mr Le
Maistre, sometimes as much as £20,000. Mr Le Maistre considered that he was due to be paid a
share of the Respondent‟s profits.
42. Mr Collas replied that certainly for 5 or 6 years bonuses had been paid to himself and Mr
Le Maistre but that had stopped about 5 years ago when the business ceased to be so
profitable. Furthermore these payments were made out of Mr Collas senior‟s bank account at
his discretion. Mr Collas said that there was no formula for payment and certainly no date or
applicable percentage and nothing was confirmed in writing. In Mr Collas‟s opinion Mr Le
Maistre had no expectation of any annual payment.
43. The Tribunal finds that in the absence of a written agreement Mr Le Maistre is not entitled
to expect any annual share of the Respondent‟s profits by way of bonus. Any monies he
received in the past were the subject of a discretionary payment by Mr Collas senior. This
claim is dismissed.
The Pension Plan
44. As described in paragraph 4 above, the Respondent contributed to a pension fund for the
benefit of Mr Le Maistre. The Tribunal were informed that Mr Collas was a beneficiary of this
fund too. Over the years various lump sums were paid in to this fund at the direction of Mr
Collas senior. The Tribunal notes that payments for Mr Collas‟ benefit were ceased in 2002. As
explained in paragraph 4 above there was a misunderstanding between Mr Le Maistre and Mr
Collas senior regarding the payment of £9,000 into this fund for Mr Le Maistre‟s benefit and
after that payment all contributions to the fund from the Respondent ceased. The Tribunal
heard that Mr Collas senior described the most recent contributions as „greedy‟ and made it
clear that he had never intended this fund to benefit from such large lump sums. The Tribunal
was informed that there is no written agreement between parties regarding payment into this
pension fund and in order to avoid this fund being frozen, Mr Le Maistre made payments into
it from his own account in 2005 and 2006.
45. Mr Le Maistre believed that he had a right for such payments to be continued by the
Company notwithstanding his redundancy as he had an expectation that such fund would be
contributed to each year.
46. The Tribunal finds that it has heard no evidence to show that this pension fund formed
one of the terms of Mr Le Maistre‟s employment. Indeed it seems to have been set up as a
favour by Mr Collas senior on the basis that discretionary sums would be contributed to it on
an ad hoc basis over the years. The Tribunal does not have jurisdiction to deal with this issue.
Company Car & Mobile Phone Employee benefits
47. Mr Le Maistre informed the Tribunal that whilst he was employed by the Respondent he
enjoyed the use of a motor car for work and social purposes which was supplied, insured and
maintained by the Respondent. He was also able to claim back the entire cost of the fuel used
by the car. In addition Mr Le Maistre was given a mobile telephone whilst he was employed
and the bills for his use of that telephone went directly to the Respondent for payment. No
distinction was made between the calls he made for work using the telephone and those made
for social purposes. Mr Le Maistre informed the Tribunal that when he ceased working for the
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Respondent he handed back the car and the mobile telephone. Now that Mr Le Maistre was
working for his own account he had had to buy a replacement vehicle, which he maintained
himself, and also a new mobile telephone. On reflection, Mr Le Maistre considered that these
two items formed part of his contractual rights and their loss should be compensated by way
of payment to him of £3,000 per annum for the value of the car and £350 per annum for the cost
of operating a mobile telephone.
48. Mr Collas replied that the car and the telephone were supplied to Mr Le Maistre in order to
assist him to perform his duties as a manager and a director of the Respondent. There was no
intention on the part of the Respondent that the value of these items should continue after Mr
Le Maistre‟s employment had ceased.
49. The Tribunal are at a loss as to why Mr Le Maistre would consider the car and telephone
supplied to him for his work as having a continuing value outside of his employment with the
Respondent. These items were supplied with the intention that Mr Le Maistre use them
during his employment with the Respondent. The Tribunal dismisses both of these claims by
Mr Le Maistre.
Failure to supply a written statement of terms of employment
50. Mr Collas admitted to the Tribunal that the Respondent had failed to provide a written
statement of terms of employment for Mr Le Maistre in accordance with article 3 of the Law.
Article 9 of the Law states that this is an offence punishable by a fine not exceeding £5,000
(being level 4 on the Standard Scale) in accordance with the Criminal Justice (Standard Scale
of Fines) (Jersey) Law 1993.
51. Mr Le Maistre‟s employment terminated on 12th January 2007. The Tribunal gave warning
in Kropiunik v Gunsite Café (2007) that offences of this nature occurring in 2007 would attract
a higher fine. The Tribunal hereby fines the Respondent the sum of £500 for failing to comply
with Article 3 of the Law.
52. The Tribunal wishes the parties to note that if a contract of employment had been entered
into by the parties much of the confusion shown by the parties over their rights and
obligations to each other regarding holiday pay, pension contributions, company car and
mobile telephone benefits would have been avoided by being recorded in that contract.
Contracts of employment exist not just to record an employee‟s rights but also to record the
extent of an employer‟s obligations and their importance and practical application should not
be overlooked in employment relationships.
Schedule of Awards and Fines
Award – Unfair Dismissal (Article 77) £32,760.00
Award – Notice Pay due (Article 56) £1,260.00
Fine – Failure to provide a written statement of terms (Article 3) £500.00
Note
An ORDER is hereby made by the Tribunal for the Respondent to disclose to the Tribunal
within 14 days of receipt of this Award information regarding holidays taken between 31 May
3005 and 12 January 2007 in order that an ORDER pursuant to Article 14 of the Law, can be
made. (See paragraph 38 of this judgment)
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Jersey Employment Tribunal
Case Number: 0812-212/06
Applicant: Mr Perry McGuire
Respondent: Lloyds TSB Offshore Limited
Case Summary: Unfair dismissal by way of conduct; entitlement to holiday pay
Hearing on 28th & 29th November 2007
Before: Mrs N Santos-Costa, Deputy Chairman
Mr P Woodward and Mr P Kirwan, Panel members
Representation:
For Applicant: Mr McGuire represented himself
For Respondent: Mr Mathew Cook, Mourants
Miss Wendy Lambert, Mourants
Witnesses:
For Applicant: None
For Respondent: Mr Mark Jackson
Mr Jonathan Potts
Mr Simon Prescott
Mr Paul Gallichan
Mr Martin Fricker
The Facts
1. Mr McGuire was employed by the Respondent („the Bank‟) on 1st June 2004. Mr McGuire
became friendly with a young woman who also worked for the Bank, referred to herein as
„X‟, but after a short while that relationship ended.
2. Mr McGuire and X both worked for the Treasury Department at the Bank but in different
teams and with limited contact on a work basis. Both Mr McGuire and X had different line
managers who ultimately reported to Mr Paul Gallichan, the Senior Manager of the
Treasury Department of the Bank („Mr Gallichan‟).
3. In February 2006 Mr McGuire and X had fallen out over the return of some DVD‟s that Mr
McGuire had lent to X. Mr McGuire sent an e-mail to a work colleague involved in this
matter, copied to X, which described X in derogatory terms regarding this matter. X was
upset to receive this e-mail at work and reported the matter to her immediate line manager,
Geoff Nott. Mr Nott told Mr McGuire by e-mail that „[X] is rather distraught by the e-mail
she has been sent. As it is disrupting her work, I also think that you should not be using
the Bank‟s e-mail system to discuss the problem I would suggest that you refrain from
contacting her in work, apart from apologising for the contents of the e-mail you sent‟. Mr
McGuire did apologise for the content of this message to X.
4. Mr Gallichan was made aware of this incident through a senior member of his department
but decided to take no action unless a complaint was made by X.
5. The Bank has an established harassment policy which is available to all staff. In addition
the Bank operates regular communications sessions with staff regarding its policies. The
staff are further kept up to date with Bank policy and any changes made by monthly or
quarterly „reads‟ which each member of staff is required to initial by way of
acknowledgment of the contents therein.
6. After a communication session where the Bank‟s harassment policy was discussed, X came
to see Mr Gallichan and explained that since her brief relationship with Mr McGuire had
187
ended she had been receiving e-mail messages at work and text messages from him. X
explained that she was upset and stressed by this contact and had informed the police
about this matter. However the e-mail messages were now affecting her work and she did
not think that she could continue to work in the same building as Mr McGuire.
7. Under the Bank‟s harassment policy a complaint can be treated either formally or
informally. A formal complaint involves an investigation and an official report being
prepared and retained by the Bank. An informal complaint attempts to seek a mediation of
the problem between the parties. The policy allows the complainant to choose which form
the complaint will take initially, and of particular importance here, only allows the
complainant to escalate an informal complaint to the formal complaint process. The
Tribunal were informed that Mr Gallichan was appointed by the Bank as the appropriate
senior manager to deal with complaints of harassment in his department. The Tribunal
were informed that a written record of all harassment complaints is made, but in respect of
informal complaints, these records are sent to the Bank‟s central HR department in the UK
and kept there under a file reference for 3 years only. No reference of such a complaint
appears on an employee‟s personnel record in Jersey.
8. Having discussed the situation, X decided to raise an informal complaint of harassment
against Mr McGuire and asked Mr Gallichan to speak to him with a view to ensuring that
all contact between them should cease. Mr Gallichan agreed to do this.
9. Mr Gallichan met with Mr McGuire on the 29th March 2006 and expressed X‟s wish that all
contact between the two of them should cease. Mr Gallichan told the Tribunal that Mr
McGuire was clearly surprised by the harassment complaint and insisted on telling him
details of X‟s personal history. Mr McGuire acknowledged that his problems with X were
affecting his work too. Mr Gallichan made it clear that he wanted to be able to resolve the
matter to both parties mutual satisfaction and that this seemed „an achievable aim‟.
However Mr McGuire made it clear to Mr Gallichan that he could not undertake not to
contact X, as he wanted to resolve certain matters which he felt were still outstanding from
their relationship. Mr Gallichan suggested that Mr McGuire use the Bank‟s counselling
service if he needed to.
10. Mr Gallichan and Mr McGuire met again on the 30th March 2006. Mr McGuire was still
distressed by the informal complaint made against him and stated that it was a private
matter between him and X. Mr McGuire expressed a wish to communicate a grievance
procedure against the person he assumed had reported this matter to Mr Gallichan, and
also expressed great concern that this complaint would be included in his personal records
and damage his career. Mr Gallichan again explained the treatment of these complaints as
described in paragraph 7 above, but Mr McGuire remained very concerned about the fact
that an informal complaint was recorded in writing and retained by the Bank. The meeting
ended without any progress being made in the matter of X‟s complaint. However Mr
Gallichan informed the Tribunal that he „requested‟ Mr McGuire to stop contact with X.
11. From Mr Gallichan‟s witness statement the Tribunal learned that during the evening
following the meeting described above, Mr McGuire allegedly verbally abused X as they
were leaving work and sent her a text questioning why she had made the complaint and
mentioning certain matters personal to X, however no direct evidence was heard about
this.
12. Evidence was heard by the Tribunal that on 31st March 2006, Mr McGuire sent an email to
X during work, in which he again objected to her making the informal complaint of
harassment and included highly sensitive and extremely personal information about X
which X had informed him about in confidence. This e-mail („the 31st March 2006 E-mail‟)
was copied to Mr Nott and purportedly X‟s line supervisor, DS, although in fact Mr
McGuire sent it to another Bank employee in England with the same name. Out of respect
for X the Tribunal have withheld from this judgment the nature and content of the
personal history of X described in the 31st March 2006 E-mail, as nothing is to be gained by
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further publication of such information. X, on receiving the 31st March 2006 E-mail,
immediately left work.
13. As a result of the 31st March 2006 E-mail, Mr Gallichan met with Mr McGuire again and
impressed upon him that it was considered wholly inappropriate and unacceptable
behaviour by the Bank. He was informed that Mr McGuire had sent the 31st March 2006 E-
mail in order „to defend himself from false allegations of wrong doing‟ and that he had
mentioned X‟s personal history in order to make her realise that it was the unresolved
nature of those issues which had made her complain of harassment as opposed to his
purported harassing behaviour. The Tribunal were informed that Mr McGuire had
included Mr Nott and DS as recipients of the 31st March 2006 E-mail because he believed
that they were involved in the informal harassment complaint process. The Tribunal were
informed categorically by Mr Gallichan on oath that only himself, X and Mr McGuire were
directly involved in the process and whilst Mr Gallichan had access to the 14th February
2006 emails about DVD‟s referred to in paragraph 3 above, Mr Nott was not involved in
the process at all. Mr Gallichan informed the Tribunal that he was concerned that Mr
McGuire did not understand or respect the informal harassment process and took advice
from the Bank‟s HR call centre on the matter. Subsequently Mr Gallichan obtained an
undertaking from Mr McGuire not to contact X any more.
14. The Tribunal were informed that in view of Mr McGuire‟s undertaking not to contact X
anymore, Mr Gallichan endeavoured to close the informal harassment complaint. The
Bank‟s policy requires both parties to sign the record of the complaint. Despite Mr
Gallichan agreeing to annex Mr McGuire‟s detailed statement of rebuttal and complaints
about how he had been treated pursuant to the policy, to the record, Mr McGuire refused
to sign the record in order to close the matter.
15. However on the 16th April 2006, Mr McGuire sent a letter to X‟s father in which he repeated
sensitive details of X‟s personal history. Furthermore he suggested that X‟s father urge her
to seek professional help as this would stop her from pursuing her claims against Mr
McGuire both to the police and at the Bank. This letter was sent to X‟s grandparents‟
address who handed the letter, unopened, to X‟s father. On receipt X‟s father came into the
Bank and demanded to know from Mr Gallichan what the Bank was doing to „protect‟ his
daughter whilst at work. Furthermore he was a customer of the Bank. X was extremely
upset by the existence and contents of this letter („the Letter‟).
16. On questioning from the Tribunal Mr McGuire admitted that he had sent the Letter in
order to try and influence X‟s father to tell X to withdraw her complaints against him,
primarily at the Bank. Mr McGuire admitted that he knew that he must not contact X (in
accordance with his undertaking given in paragraph 13 above) and thought the Letter was
a way around that problem.
17. Mr Gallichan was extremely concerned about the act of sending the Letter and the tone
and content of it and decided to suspend Mr McGuire pending a disciplinary hearing
considering such behaviour to potentially amount to gross misconduct.
18. Mr McGuire was suspended in accordance with standard Bank practice. He was informed
of his suspension on 26th April 2006 at approximately 4.40pm and escorted back to his desk
to clear his personal effects and then escorted out of the building. Mc McGuire gave
evidence that he felt deeply humiliated by this experience and on learning of his
suspension asked Mr Gallichan if he could be „quarantined „ until the end of business, so
that he could leave in the normal manner and not draw attention to his circumstances. This
request was refused. Mr McGuire said that his humiliation was deepened when an
acquaintance informed him a few weeks later that he had heard he had been escorted off
the Bank‟s premises. Mr McGuire submitted to the Tribunal that he considered that his
personal and professional reputation had been damaged by these actions of the Bank.
189
19. Mr McGuire was suspended from 26th April 2006 to 28th June 2006. During this time Mr
McGuire commenced a formal harassment procedure against X, (which was subsequently
withdrawn following advice from an investigator of the Bank brought in from the UK), a
grievance complaint against Mr Gallichan on the basis that he was not an impartial
mediator, a grievance complaint against the Bank, on the basis that it operated a
discriminatory harassment policy and a grievance complaint against X, that the original
informal complaint was a malicious and unfounded claim (this replaced the withdrawn
harassment claim against X). All of these claims were accepted and processed by the Bank
in accordance with their usual procedure. The Tribunal were informed that dealing with
these complaints led to Mr McGuire‟s disciplinary hearing being held later that it would
have intended.
20. On the 28th June 2006 Mr McGuire‟s disciplinary hearing was held in Jersey. The hearing
was conducted in accordance with the Bank‟s published disciplinary policy by Mr Mark
Jackson, a Senior Manager of the private banking division of the Guernsey branch of the
Bank. The Tribunal heard in evidence that Mr Jackson had never met Mr McGuire or dealt
with him or anyone else involved in the proceedings and considered himself independent,
Furthermore, whilst this was the first „Stage 4‟ disciplinary hearing that Mr Jackson had
dealt with, he was fully trained for the task and was assisted throughout by a Senior HR
representative of the Bank. Mr McGuire was given access to all information that he
requested for this hearing and was represented by his union official. Mr Jackson informed
the Tribunal that he considered that Mr McGuire accepted at the hearing that it has been
wrong to send the 31st March 2006 E-mail and the Letter and that his behaviour had been a
„one – off‟. On that basis Mr Jackson felt that Mr McGuire should be given a final chance
and decided to sanction him for his conduct by issuing a final written warning as follows,
„Your overall conduct will be monitored closely and a formal review will be held after 12
months. You are advised that any recurrence of this conduct, or failure to meet the Group‟s
standards in al respects, could lead to your dismissal.‟
21. Mr McGuire confirmed that he understood the sanction and undertook to Mr Jackson not
to do it again. Mr Jackson told the Tribunal that he believed Mr McGuire and thought that
was the end of the matter. As a gesture of goodwill, Mr McGuire, on advice from his union
representative, withdrew his grievance complaints against Mr Gallichan and the Bank
following this hearing.
22. The Bank‟s disciplinary process allows an employee to appeal against a decision made; Mr
McGuire did not lodge an appeal against Mr Jackson‟s decision.
23. A copy of the minutes of the disciplinary hearing were sent to Mr McGuire for comment
and approval. Mr McGuire returned the minutes, duly signed, with a covering letter
containing 4 observations on specific points of concern. Mr McGuire informed the
Tribunal that in fact these minutes did not accurately reflect the matters discussed at the
disciplinary hearing at all.
24. Mr McGuire returned to work on the 4th July 2006. Mr Gallichan met with him and
suggested it was time to „move on‟. Instead Mr McGuire noted that X‟s complaint against
him was not closed and the he still wanted „to clear his name‟. Mr Gallichan informed the
Tribunal that by this time Mr McGuire should have been aware of the confidential nature
of the complaint process. Mr Gallichan told Mr McGuire not to proceed in this manner,
and that it was „not an appropriate course of events‟ and he should only contact X or refer
to her in a work related manner. Mr Gallichan informed Mr McGuire that having taken
advice from the Bank‟s UK HR Centre, and on the basis that Mr McGuire refused to sign
off the informal complaint record, he intended to close it himself, with just X‟s signature
on it.
25. However on the 13th July 2006, in work time, Mr McGuire sent an email to a fellow
employee („NK‟) entitled „Damaged Goods‟. In this email Mr McGuire sought details of
X‟s previous relationships within the Bank as he thought this information would assist
190
him in furthering his grievance against her for her alleged harassment of him in making
an informal harassment complaint about his behaviour in sending her unwanted text and
email messages. Mr McGuire stated that this information would be used to „rebut [X‟s]
claim and then go on the offensive himself‟.
26. NK showed this email to her line manager who in turn passed it to Mr Gallichan. On
advice from the Bank‟s UK, HR Call Centre, Mr Gallichan called Mr McGuire to a ‟fact
find‟ meeting. Mr Gallichan advised that Mr McGuire could bring an independent witness
to this meeting, and that he should not discuss this matter with anyone, in particular NK.
Mr McGuire turned up at the meeting with NK as his witness, informing Mr Gallichan
that NK knew nothing about the purpose of the meeting, which NK confirmed.
Throughout the meeting Mr McGuire responded „no comment‟ to each of Mr Gallichan‟s
questions.
27. In the meantime Mr McGuire received a letter from Mr Martin Fricker, on 3rd August 2006,
the Island Director of the Bank, that it intended not to continue to investigate Mr
McGuire‟s grievance complaint against X because Mr McGuire had not supplied any
evidence to support it which was different to the evidence he had given to support his
formal harassment complaint against X, and on the basis of independent advice received
by the Bank, that formal harassment complaint had been withdrawn by the Bank as it was
found to have no foundation. Mr McGuire informed the Tribunal that notwithstanding
this position, he considered his grievance against X to remain intact.
28. On the 11th August 2006 Mr McGuire was informed by Mr Gallichan that the Bank
considered X‟s informal complaint to be closed. Mr Gallichan informed the Tribunal that
in the light of Mr McGuire‟s refusal to sign the Record form he had decided to take a
pragmatic approach and close the matter by appending Mr McGuire‟s letter of rebuttal. Mr
McGuire considered this action to be a breach of the informal harassment policy.
29. Mr Gallichan considered that Mr McGuire had acted outside the terms of his final written
warning set out in paragraph 20 above by sending the „Damaged Goods‟ email to NK.
Furthermore, Mr McGuire had breached the Bank‟s policy on the proper use of its email
system by sending this message. This in the opinion of Mr Gallichan constituted Gross
Misconduct, and Mr McGuire was suspended from the Bank on the18th August 2006
pending a disciplinary hearing.
30. The second disciplinary hearing was held on the 10th October 2006 in Jersey. It was
conducted by Jonathan Potts, a Senior Manager of Personal Banking with the Bank in the
Isle of Mann. This was the first disciplinary hearing conducted by Mr Potts but he was
supported by an experienced HR Manager of the Bank who ensured that he understood
the Bank‟s disciplinary policy and followed it. Mr Potts informed the Tribunal that he did
not know any of the parties involved in this matter. Mr McGuire was present at the
hearing and represented by a union official.
31. Mr Potts heard allegations of gross misconduct against Mr McGuire namely that Mr
McGuire had engaged in serious misconduct likely to cause offence or embarrassment to
another employee („X‟) and that he had committed a serious breach of Rule 10.1 of the
Bank‟s Information Technology Policies and Rules („ITEC‟) in using the Bank‟s electronic
mail system to send the „Damaged Goods‟ email to NK. Mr Potts confirmed that he was
aware of the Final Written Warning issued to Mr McGuire on 28th June 2006. Mr McGuire
told the Tribunal that he was not sure which part of Rule 10.1 he was alleged to have
breached as the Bank were not specific in its charge against him.
32. Mr McGuire defended his actions on the basis that the „Damaged Goods‟ email was the
only way of „clearing his name‟ against what he considered to be a malicious attempt by X
to damage his reputation. At the hearing Mr McGuire acknowledged that the Bank had
closed X‟s complaint, and that it had found his grievance against X unsubstantiated, but
191
stated that he did not agree with their findings. Mr McGuire also noted that he had
withdrawn his grievance complaints about Mr Gallichan and the Bank.
33. Mr Potts told the Tribunal that despite Mr McGuire‟s assurances, he doubted that Mr
McGuire had taken seriously the terms of the Final Written Warning. Mr Potts also said
that Mr McGuire maintained that the Damaged Goods email was not contentious and thus
not outside his undertaking to Mr Gallichan or the terms of the Final Written Warning. Mr
Potts found that Mr McGuire‟s actions, „were likely to cause offence or embarrassment to
another employee and that [he was] in breach of ITEC rule 10.1‟.
34. Mr Potts concluded that Mr McGuire‟s „persistent misconduct‟ had „irrevocably destroyed
the trust and confidence which must exist between employee and employer‟, and that Mr
McGuire should be dismissed immediately and without notice. Accordingly Mr McGuire‟s
employment with the Bank terminated on the 13th October 2006.
35. Mr McGuire appealed the decision to dismiss him and this appeal was heard on the 8th
December 2006 by Simon Prescott, the Head of Corporate Banking at the Bank in Jersey,
Guernsey and the Isle of Mann. Mr Prescott had acted in appeals hearings before but
nevertheless was assisted by a representative from the Bank‟s HR department. Mr
McGuire attended the hearing with his union representative.
36. Mr Prescott informed the Tribunal that he saw his role as considering the reasonableness
of the decision taken at earlier disciplinary hearings and to see whether there was any new
evidence that should be heard, to check that the correct procedure had been followed and
to ensure that nothing had been missed when Mr Potts made his decision to dismiss Mr
McGuire.
37. The Tribunal heard that Mr McGuire was very anxious that Mr Prescott understood that he
had sent the various emails in this matter and the Letter in an attempt to clear his name
following the informal harassment complaint made against him by X. Furthermore, Mr
McGuire believed strongly that Mr Potts was wrong not to allow the evidence of NK at the
second disciplinary hearing as she could have supported Mr McGuire‟s reasons for his
behaviour. However, Mr Prescott was satisfied that the Bank had concluded the informal
harassment procedure without attaching any blame to Mr McGuire, as indeed the process
was meant to operate. Mr Prescott considered the harassment complaint to be a quite
separate issue to the matters that Mr McGuire was disciplined for, namely that he had
failed to follow the instructions of a senior manager and subsequently the Bank in the
form of the Final Written Warning. Furthermore, Mr McGuire had used the Bank‟s internal
communication system to send sensitive and personal information regarding X to others,
and this was in breach of ITEC Rule 10.1. Following consideration, Mr Prescott found that
the process followed in the disciplinary hearings had been „fair and proper‟ , and that the
decisions reached at those hearings „ had been reasonable and based on the evidence
available‟. Accordingly, by a letter dated 14th December 206, Mr Prescott upheld the Bank‟s
decision to dismiss Mr McGuire.
38. Mr McGuire brought another matter to the attention of the Tribunal. Mr McGuire
informed the Tribunal that he had booked a period of holiday leave which fell during his
second period of suspension. The original date of his second disciplinary hearing was set
to be the 26th September 2006. Unfortunately his union representative could not make that
date, so it was rearranged by the Bank to the 10th October 2006. This date fell within a
period of holiday booked by Mr McGuire. However, Mr McGuire did not ask the Bank to
rearrange the date again but instead wrote to Mr Martin Fricker, and „instructed‟ him to
cancel Mr McGuire‟s holidays forthwith, so they fell back into his entitlement. Mr Fricker
refused to do this but instead said that Mr McGuire would receive a day‟s pay for the date
he attended the hearing.
39. Mr McGuire stated to the Tribunal that it was common practice for employees to cancel
their holiday leave or alter it at short notice, and provided it did not cause inconvenience,
192
permission was always given. Mr McGuire pointed to Mr Fricker‟s refusal as evidence of
the Bank‟s discriminatory practices against him.
40. The Bank pointed out to the Tribunal that it has a discretion as to whether to accept an
application from an employee to change their holiday dates and this was not an implied
term of Mr McGuire‟s contract of employment. Furthermore Mr McGuire had not
demonstrated a financial loss by the refusal.
41. Mr McGuire asked the Tribunal to consider the Bank‟s failure to communicate to him the
new date of the disciplinary hearing (it instead contacted his union representative), as
evidence that it had acted unreasonably in this matter. Mr McGuire admitted that he was
informed of the new date by his union representative and informed by the Bank 2 days
after that, and that he had suffered no actual inconvenience.
42. Mr McGuire filed a Form JET 1 with the Jersey Employment Tribunal on the 8th December
2006. Mr McGuire complained that he had been unfairly dismissed by the Bank and that
he was entitled to be reimbursed for 12 days holiday that he was required to take during
the period of his second suspension form work.
The Law
43. Article 64 of the Employment (Jersey) Law 2003 („the Law‟) requires an employer to show
the reason for the dismissal where the fairness or unfairness of that dismissal is being
considered. Some reasons are considered potentially fair reasons and these are set out in
Article 64 (2) of the Law. An employee‟s misconduct is considered a potentially fair reason
for dismissal. In any event an employer is required by Article 64 (4) of the Law to have
acted reasonably in treating such reason as sufficient reason for dismissal and to have
acted in accordance with equity and the substantial merits of the case.
44. Articles 64 (1) (2) and (4) are set out as follows:
(1) In determining for the purposes of this Part whether the dismissal of an employee is
fair or unfair, it shall be for the employer to show –
(a) the reason (or, if more than one, the principal reason) for the dismissal; and
(b) that it is either a reason falling within paragraph (2) or some other substantial
reason of a kind such as to justify the dismissal of an employee holding the position
which the employee held.
(2) A reason shall fall within this paragraph if it –
(a) relates to the capability or qualifications of the employee for performing work of
the kind which he was employed by the employer to do;
(b) relates to the conduct of the employee;
(c) is that the employee was redundant; or
(d) is that the employee could not continue to work in the position which he held
without contravention, (either on his part or on that of his employer) of a duty or
restriction imposed by or under an enactment.
(3) …………..
(4) Where the employer has fulfilled the requirements of paragraph (1), the
determination of the question whether the dismissal is fair or unfair (having regard to
the reason shown by the employer) shall –
(a) depend on whether in the circumstances (including the size and administrative
resources of the employer‟s undertaking) the employer acted reasonably or unreasonably
in treating it as a sufficient reason for dismissing the employee; and
(b) be determined in accordance with equity and the substantial merits of the case.
(5) …………
45. Article 65 (5) refers to situations which are considered by the Law to be automatically
unfair dismissals and they do not apply in this case.
193
46. Following the decision of the Royal Court in Voisin v Brown [2007] JRC47 the Tribunal
also considers whether an employer‟s decision or process adopted was within the band of
reasonable responses or actions of a reasonable employer.
The Tribunal decision
Unfair Dismissal
47. The starting point for this entire process is the informal harassment complaint. Mr
McGuire argued consistently that „but for‟ that complaint he would not have sent the 31st
March 2006 E-mail, the Letter or the Damaged Goods Email. This therefore is the starting
point for the Tribunal‟s decision. The Tribunal have considered the reasonableness of the
Bank‟s informal harassment procedure and its effect on Mr McGuire.
48. The Tribunal finds that the informal harassment procedure of the Bank is not
unreasonable. It is driven from the perspective of the complainer: the Tribunal would
expect that, but the system has appropriate safeguards for the alleged harasser too. It is
clear that the complaint system is confidential and that the Bank makes all reasonable
efforts that it remains so. The only reason third parties became aware of the existence of
the informal harassment complaint was because Mr McGuire informed them by way of the
31st March 2006 E-mail. The Tribunal is satisfied that the Bank had to make and keep a
record of the progress of the informal harassment complaint. This provides safeguards for
the Bank and a point of reference in the event of future complaints but the existence of this
written record is balanced by the fact that the record was kept off the Island under a
reference number only, for a maximum period of 3 years. This record did not appear on an
employee‟s personnel file in Jersey and no reference was made to it. This procedure also
underlines the unproven status of the allegations contained therein, a fact which Mr
McGuire did not grasp. A further safeguard in the Bank‟s harassment policy was that Mr
McGuire could raise a grievance against the making of a complaint, which he did and
which was processed by the Bank. The fact that Mr McGuire could not convert the
informal harassment complaint procedure into a formal complaint leading to an
investigation did not prejudice him in any way. Mr McGuire made it clear to his
employers that he did not like the terms of the policy. In the Tribunal‟s opinion it was a
reasonable policy and he should have considered resigning his position if he felt that he
could not continue working for an organisation that operated in such a manner.
49. Mr McGuire complained to the Tribunal that the Bank had acted incorrectly in signing off
the informal harassment complaint without his consent and thus breached their duty of
trust and confidence to him. It is clear to the Tribunal that an impasse had been reached by
the parties: the policy required Mr McGuire to sign off the record of the complaint but Mr
McGuire refused to do so because he did not agree with the way in which the policy was
written. The Tribunal finds that the Bank did breach the terms of the Policy in closing off
the harassment complaint without Mr McGuire‟s consent but it did append Mr McGuire‟s
written points of rebuttal to it and did allow Mr McGuire to bring a harassment claim
against X, and grievance complaints against X, Mr Gallichan and the Bank. The Tribunal
has asked itself therefore what was lost to Mr McGuire by this breach in procedure. The
answer has to be nothing and accordingly the Tribunal endorses the Bank‟s pragmatic
approach to this situation.
50. The Tribunal notes that in fact nothing came of Mr McGuire‟s grievance complaints or
harassment claim, all of which were either cancelled by the Bank (following advice from a
senior independent consultant, whose opinion Mr McGuire did not take issue with) or
voluntarily by Mr McGuire on advice from his own union representative. Mr McGuire
cannot now seek to revive those grievances through the Tribunal.
51. The Tribunal had considered most carefully the instances of Mr McGuire‟s misconduct at
work and the circumstances surrounding each situation.
194
52. The Tribunal notes that leading up to the 31st March 2006 E-mail, Mr McGuire had been
told quite clearly by Mr Nott „to refrain from contacting her in work‟. The Tribunal notes
that Mr Nott is senior to Mr McGuire. The Tribunal is mindful that the tone of the first 2
meetings between Mr McGuire and Mr Gallichan following the informal harassment
complaint are very much that it would be „best‟ for Mr McGuire not to contact X anymore
at work. There was quite clearly an atmosphere of sensitivity in approaching X at work.
The Tribunal heard from Mr McGuire that whilst he was friendly with Mr Gallichan he
was very aware that Mr Gallichan was the most senior person in his department and
respected his position and experience. However Mr McGuire refused to listen to the
instructions and/or advice he received or rely on his common sense, and instead sent the
31st March 2006 E-mail not only to X but to two other members of staff. The Tribunal finds
this action astonishing. The fact that Mr McGuire ignored instructions given to him by his
superiors is surprising but he was clearly disrespectful of X‟s position by including such
information in the message. Furthermore, Mr McGuire was reckless as to who saw the
message and thus become privy to its contents – the Tribunal has asked itself the
consequences if the email had been bounced because a recipient was out of the office for
example. Also the Tribunal is mindful that the Bank‟s IT department doubtless has access
to all electronic communication in the office. This is one of the reasons for ITEC Rule 10.1,
which is discussed below. Mr McGuire seemed so centred on his own misery that he
disregarded the feelings of a fellow employee. The Tribunal considers that any employee
should be able to come to work in the reasonable expectation that they will not be
humiliated or upset and this email clearly breached that expectation. The Tribunal finds
that by sending the 31st March 2006 E-mail, Mr McGuire clearly disobeyed the instruction
of Mr Nott and the spirit of the informal harassment process which had been explained to
him at length. The Tribunal considers the act of sending this email (whether or not in
these particular circumstances) to be unacceptable conduct at work.
53. The Tribunal has next considered the act of sending the Letter. The Tribunal finds this
action by Mr McGuire deeply troubling. Again Mr McGuire considered only his own
position, he does not seem to have understood X‟s position in this matter at all. Mr
McGuire addressed the Tribunal about the Bank‟s duty of care to him regarding his health
(here mental health) and safety whilst at work, but the Tribunal would also like to point
out that the Bank has a similar duty of care to X. The Tribunal finds that the objective of
the Letter was to threaten and intimidate X‟s father regarding the possible release of the
personal information held by Mr McGuire unless X‟s father persuaded X to withdraw her
claims against him from the police and subsequently at work. In the opinion of the
Tribunal, X‟s father had good grounds to be angry with the Bank for failing to protect his
daughter from Mr McGuire whilst at work. It is clear to the Tribunal that Mr McGuire had
breached his undertaking to Mr Gallichan not to contact X and had caused embarrassment
to his employers by sending the Letter. The Tribunal is in agreement with the employer
that this should be considered as an act of misconduct.
54. The Tribunal has also considered the „Damaged Goods‟ email to NK. This email was sent
within 2 weeks of Mr McGuire‟s return to work following his Final Written Warning. The
Tribunal is of the opinion that Mr McGuire broke the spirit and context of the Final
Written Warning by sending this email. Mr McGuire knew that he should have nothing to
do with X or this whole matter but he persisted to stir it up again. Further, the email refers
to him „going on the offensive‟ thus indicating that there is more to come. Mr McGuire
sent the email at work thus breaching ITEC Rule 10.1. The Tribunal finds that he knew
about the existence of this rule by way of staff training and the monthly or quarterly
„reads‟. In the opinion of the Tribunal the Bank reasonably asserted that by sending this
email Mr McGuire committed an act of misconduct.
55. The Tribunal is of the opinion that Mr McGuire was dismissed by reason of his
misconduct. However the Tribunal is also required to consider the reasonableness of the
Bank‟s response in treating these acts of misconduct as grounds for dismissal taking into
account all the circumstances of the case and bearing in mind equity and the substantial
merits of the case.
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56. As stated above, the Tribunal finds the Bank‟s harassment policy (including for the
benefit of any doubt, the informal harassment complaint procedure), to be entirely
reasonable for the reasons stated in paragraph 48 above.
57. The Tribunal has considered the Bank‟s disciplinary policy very carefully. It has found
that the Bank follows established rules which are published fully for all users. The
Tribunal is impressed that the Bank goes to significant effort to find a mature independent
adjudicator who is senior and experienced in the management of others. Further, such
adjudicator was supported on each occasion by an experienced HR representative to
ensure the process was understood and followed. The Tribunal is satisfied that Mr
McGuire was given the chance to participate fully in the proceedings and notes he was
represented by his union official at every stage. The Tribunal notes that Mr McGuire did
not think the minutes of the First or Second Disciplinary Hearings reflected the actual
events but his evidence lost credibility on the basis that he was given every opportunity to
comment on these minutes (and in fact did send back observations) and at no time made
this assertion to the Bank, instead he signed them off. The Tribunal notes that the date of
the Appeal Hearing did not really suit Mr McGuire as if fell within his period of leave but
he made no effort to change it and on the basis that the Bank did move it once before on
Mc McGuire‟s request, the Tribunal assumes that it would have done so again. The
Tribunal notes that Mc McGuire was very upset that NK‟s evidence was not allowed at the
second disciplinary hearing but it considers such evidence to be relevant to the harassment
process which was not covered by this hearing. This hearing was convened to consider Mr
McGuire‟s misconduct by breaching instructions from superiors, his final written warning
and ITEC Rule 10.1. The harassment process was finished by this time, a distinction that
Mr McGuire failed to address.
58. The Tribunal has concerns about the manner in which Mr McGuire was suspended.
Whilst a large organisation can be expected to have procedures for dealing with this type
of situation the Tribunal believes that some sensitivity can be built in. In this case Mr
McGuire had not committed fraud or professional misconduct and it would not have been
inappropriate for him to have simply been put into a client meeting room for 20 minutes or
so until close of business. To march Mr McGuire off the premises seems to the Tribunal to
be unnecessarily harsh.
59. The Tribunal had concerns about the delays in dealing with Mr McGuire‟s disciplinary
hearings (nearly 2 months in the first case), but following enquiry the Tribunal is satisfied
that in the circumstances, (as described in paragraph 19 above) these delays were not
unreasonable.
Conclusion
60. Mr McGuire suggested to the Tribunal that he had been treated unfairly throughout this
process by the Bank and no one had tried to understand his actions from his perspective.
Mr McGuire maintained that the Bank‟s discriminatory actions towards him had led to a
breakdown of his trust and confidence in the Bank as his employer, and all his advice
pointed to the fact that he had been unfairly treated and thus unfairly dismissed.
61. The Tribunal finds that Mr McGuire failed to understand or accept the nature of the
informal harassment policy to any extent. For the reasons stated herein Mr McGuire was
not discriminated against by this policy and he was certainly not treated unfairly. Mr
McGuire should have accepted the terms of the informal harassment policy or simply left
his job. His failure to do this led him to wage a vendetta on X. He was warned not to
contact X but he continued to do so in the most humiliating and public manner. In sending
the 31st March Email and the Letter Mr McGuire was also reckless as to who knew about
X‟s personal history. Mr McGuire spoke at length about the duty of care that the Bank
owed him as an employee but he failed to see that the Bank also owes such a duty of care
to X. When Mr McGuire repeatedly failed to follow its instructions to leave X alone the
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Bank had no choice but to take action. The Tribunal does not find the Bank‟s actions at
any stage of this matter to be unreasonable, and they certainly fall within the band of
reasonable responses open to it in these particular circumstances. The Tribunal is satisfied
that the Bank endeavoured to and did, act fairly at every stage of the disciplinary process
and in this particular case had no option but to dismiss Mr McGuire from his position at
the Bank because the relationship of trust and confidence between employer and
employee had been destroyed.
62. This Tribunal does not find Mr McGuire to have been unfairly dismissed.
The Holiday Claim
63. The Tribunal notes that Mr McGuire‟s Contract of Employment contains no provisions
regarding the cancellation or rearrangement of booked holiday dates. Accordingly the
Tribunal has considered whether this matter was an implied term of Mr McGuire‟s
employment. Mr McGuire gave evidence that it was common practice within the Bank for
employees to cancel or vary their holiday dates and that provided the Bank was not
inconvenienced by such alteration permission was always granted. Mr McGuire said that
he twice before asked for permission to change his holiday dates and permission had been
given. This evidence was not disputed by the Bank. However, part of this implied term is
the Bank‟s discretion to give permission – this is evident by Mr McGuire‟s own admission
that an application to change dates had to be made, and the Bank considered its response.
A discretion involves the ability to grant or refuse an application. The Tribunal notes that
Mr McGuire wrote to Mr Fricker on 25th September 2006 regarding his holiday dates and
stated that he was; „formally withdrawing any holiday previously booked … with
immediate effect … I should be grateful if you would action my request as detailed. Thank
you‟. Mr McGuire also includes a paragraph criticising the conduct of the Bank in respect
of his dismissal and states that such, „unprofessional behaviour and discrimination by the
Bank will … be highlighted at any future Employment Tribunal‟. The Tribunal had noted
that in his evidence regarding this matter Mr McGuire twice stated that he „instructed‟ Mr
Fricker to cancel his holiday.
64. The Tribunal is of the opinion that Mr McGuire seemed to have forgotten that he was
asking the Bank for a favour in cancelling his holiday. Such cancellation was not an
employment right. As the Bank was exercising a discretion in this matter, the Tribunal
would have expected Mr McGuire to be more cautious in the tone of his application. The
Tribunal notes that Mr Fricker replied to Mr McGuire suggesting that he change the date
of the Appeal Hearing if it was inconvenient to him, but otherwise the holiday dates
would stand. The Tribunal notes that in his letter appealing Mr Fricker‟s decision, Mr
McGuire again refers 5 times to his „instructions‟ to the Bank to cancel his holiday dates.
65. The Tribunal is of the opinion that it was an implied term of Mr McGuire contract of
employment that the Bank had a discretion to allow a request to alter booked holiday
dates. In this case the Bank exercised its discretion by refusing to allow Mr McGuire to
change the dates which in the circumstances was not an unreasonable response.
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